Lord Bruce-Lockhart

Sir Alexander John Bruce-Lockhart, Knight, OBE, having been created Lord Bruce-Lockhart, of The Weald in the County of Kent, for life—Was, in his robes, introduced between the Lord Astor of Hever and the Lord Hanningfield.

Lord Low of Dalston

Colin MacKenzie Low, Esquire, CBE, having been created Baron Low of Dalston, of Dalston in the London Borough of Hackney, for life—Was, in his robes, introduced between the Baroness Warnock and the Lord Morris of Manchester, and made the solemn affirmation.

Guantanamo Bay: Suicides

Viscount Waverley: asked Her Majesty's Government:
	What is their response to the recent suicides in Guantanamo Bay.

Lord Triesman: My Lords, we are very concerned about the deaths of the three detainees at Guantanamo Bay detention facility and await the results of the investigation into those deaths that has been promised by the United States Government. We note the serious concern that has been expressed by the President of the United States.

Viscount Waverley: My Lords, are the Government aware that they are tainted by association with an overall strategy that is demeaning the objective and that will arguably be self-defeating? How can we ensure that the likes of Guantanamo are closed and that the prisoners who are guilty are not made martyrs, while allowing for a steady release of the remainder?

Lord Triesman: My Lords, we have made it clear that the circumstances in which detainees continue to be held at Guantanamo Bay are unacceptable and that it should be closed. I think that people know our view, and I do not accept that we are tainted, because we have expressed our view. The handling of detainees has to be consistent with our objectives, including preventing further terrorist attacks, undermining the work of those who recruit terrorists and upholding respect for human rights and the rule of law. More than 310 detainees have been moved from Guantanamo back to their home countries or their countries of origin, and many more are being considered for the same arrangements. But those arrangements must not pose a threat of their being treated inhumanely on their return.

Baroness Whitaker: My Lords, is the Minister aware that there is a wide range of opinion in the UK that thinks that many human rights are being violated in Guantanamo Bay? Have our Government made it clear enough that they think it ought to be closed?

Lord Triesman: My Lords, I can confirm that the Government have made it clear on a number of occasions that the circumstances are unacceptable and that Guantanamo Bay should be closed. I fully associate myself with the views that have been expressed by the Government on this occasion.

Lord Wallace of Saltaire: My Lords, can the Minister assure us that British Ministers, while visiting the United States, will take every opportunity in private and in public to insist that the United States is as subject to international law as all other states? One of the most distressing things about the Bush Administration and the neo-conservatives who have advised them is a strong belief that international law applies to others but cannot override the sovereignty of the United States. This is a clear case in which the Geneva conventions have been flouted by the United States although there are others in which the United States appears to regard international law as applying to others but not, on a reciprocal basis, also to the United States.

Lord Triesman: My Lords, as I said a few moments ago, we have made the point that the facility should be closed and have frequently urged that international law should be respected. I do not know that anybody in the United States could be in any doubt about our view on those matters.

Lord Howell of Guildford: My Lords, the Americans have a right to keep some rather terrifying potential or alleged killers under guard, but would not the friendliest advice to them be to move Guantanamo to the mainland? The idea of trying to evade some of the standards of human rights by keeping the prison beyond American sovereignty has clearly failed, and there has been a terrible backlash against American opinion throughout the world. Is not the way forward to move Guantanamo to the mainland, observe the new ruling of the Supreme Court that military tribunals are not adequate and ensure that the prisoners there have a right to a proper trial under due process? Is that not the best advice that we could now give?

Lord Triesman: My Lords, the noble Lord makes a vital point. There are people being held who plainly pose a very serious risk to the security of all of us, including those of us in this country. It is worth recalling the events that set in train the current position. Nevertheless, it is for the United States to consider how to handle and to try those people. I commend the sagacity of the Supreme Court in ensuring that a way will have to be found for a robust and lawful trial to be applied to anybody charged.

Lord Campbell of Alloway: My Lords, is there any reason to suppose that the interrogation of those remaining unlawfully detained could be of any value to counter-terrorism today?

Lord Triesman: My Lords, I have no means of knowing whether the United States feels that it has obtained the information that it requires, and I shall not speculate on that. However, whatever methods are used, whatever form of imprisonment is used and whatever form of trial is envisaged, they should accord with law and with international law.

Lord Morris of Aberavon: My Lords, I am confident that Her Majesty's Government wouldnot contemplate keeping anyone in the same circumstances as Guantanamo Bay. When did we make it clear to the Americans that the place should be closed?

Lord Triesman: My Lords, the Prime Minister made it clear some time ago. My noble and learned friend the Attorney-General has made it clear in the House and elsewhere. I think that the United Kingdom Government's view has been well known for a long time. I repeat—I ask noble Lords to understand—that there is a desire in general to make sure that some extremely dangerous peopleto all of us, including those in the United States, are processed in a proper and legal way but that they are also subjected to the proper rigours of law for the acts that they have committed.

Lord Hylton: My Lords, will the Minister confirm that the American authorities have asked for eight former British residents to be accepted back into this country? Will the Government deal with that request promptly, given that most of them have families here?

Lord Triesman: My Lords, I am not aware that the United States Government have asked us to receive those people who had residence here. However, I know and I think that the House knows that we made vigorous representations on behalf of all of the United Kingdom citizens who were held in Guantanamo Bay. It is a measure of success that they were returned to the United Kingdom.

Lord Campbell-Savours: My Lords, could the closure of Guantanamo lead to more extraordinary rendition?

Lord Triesman: My Lords, I do not accept that there has been extraordinary rendition, especially in relationship to Guantanamo.

People Trafficking: Children

Baroness Knight of Collingtree: asked Her Majesty's Government:
	Whether they have any plans to introduce legislation to create an offence of child trafficking.

Baroness Scotland of Asthal: My Lords, prosecutions for child trafficking can be pursued within the terms of the Sexual Offences Act 2003 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Convictions of child traffickers using this new legislation have already been obtained. We are keeping the effectiveness of the Sexual Offences Act 2003 under review. We have no current plans for further legislation.

Baroness Knight of Collingtree: My Lords, did not the Minister in another place, Mr Tony McNulty, very recently confirm that no legal offence of child trafficking existed and that therefore immigration authorities, social services and the police do not take action specifically against it? Is there not now clear evidence that hundreds of children are being trafficked into Britain and used in private houses, cannabis factories and sweatshops? Will the Minister now go further than her very sympathetic answers to this House on 28 June and persuade the Government to legislate against it?

Baroness Scotland of Asthal: My Lords, I assure the noble Baroness that it is possible to bring cases against those who traffic children under the Sexual Offences Act. Of course, we have now done that successfully, and the Crown Prosecution Service has recorded 10 offenders convicted of child trafficking-related offences who have received prison sentences of up to 18 years. That was up till March of this year. We do not have further data, but I assure the noble Baroness that we are reviewing the Sexual Offences Act and will take steps if we feel that further offences need to be created to bring this dreadful and disgraceful offence to book.

Lord Dholakia: My Lords, does the Minister accept that trafficking in women and children is now as profitable as trafficking in drugs? Would she also note UNICEF's report that twice as many countries are now reporting child abduction and trafficking than was the case two years ago? What priority is the Serious Organised Crime Agency giving to this matter and is there now a common Europe-wide policy to tackle this vile problem?

Baroness Scotland of Asthal: My Lords, the noble Lord is right that there appears to be a level of trafficking in women and children for non-sexual work, exploitation and matters of that sort. It is a matter of huge concern to us. I hope that thenoble Lord will be reassured by the work that the Government are doing. We have set up a ministerial group on trafficking and an advisory stakeholder group, and we are working with SOCA to deal directly with the matter. There have been operational developments—for instance, global change in UK visa requirements ensuring better identification of minors and matters of that sort. I assure the noble Lord that we are working extremely energetically with all the criminal justice agencies to grip this offence and deal with it trenchantly and effectively.

Baroness Finlay of Llandaff: My Lords, what is being done to ensure that those working in social services, education and health are aware of the pointers that children are being trafficked, given trafficked children's fear of admitting what has happened to them?

Baroness Scotland of Asthal: My Lords, I touched on that in part. We set up the ministerial group on trafficking at the beginning of 2005 to co-ordinate throughout Whitehall the policy that represents a more robust response to this difficulty. A number of departments are engaged; we understand the role that social workers and others are playing. I hope that noble Lords will be pleased to know that, as a result of the work, we have specialist teams of social workers and trained immigration officers at 22 ports to deal with all unaccompanied children, and the DfES is working to safeguard children, too. Noble Lords will know that that is a multidisciplinary response.

Lord Elton: My Lords, when a trafficker is apprehended, what steps are taken to find the children who have been trafficked? Can the Minister tell usa little more about what is done to or for them thereafter? What is the end of the story for them?

Baroness Scotland of Asthal: My Lords, if children are identified, their best interests will always be the key consideration in any decision on whether to return them. We will have a full risk assessment. Unfortunately, on occasion, the children are found with the trafficker—that is part of the identification. We are taking steps to make sure that, when children come in, the visa requirements are such that we know with whom they come in and the purported relationship. Those steps will enable us better to identify the children who go missing.

Lord Mackenzie of Framwellgate: My Lords, does my noble friend agree that, if the United States were removed from the schedule of countries covered by the Extradition Act 2003, that would hinder the fight against organised crime, including child trafficking?

Baroness Scotland of Asthal: My Lords, my noble friend is right. The inclusion of the United Statesin Schedule 2 means we can deal with a series of offences, children trafficking and people trafficking for sexual and other exploitation being among those where dual criminality is alleged. It is essential that all those entrusted with pursuing crime of that nature should have every tool available to them to do so expeditiously.

The Earl of Sandwich: My Lords, have the Government studied the Italian example of social intervention, which ensures that every child who has been trafficked has proper protection, therapy and time for reflection? When will they sign the European convention on trafficking?

Baroness Scotland of Asthal: My Lords, with regard to the second issue, as I have said to the House before, consultations are ongoing, and a decision will be arrived at. I am not sure whether the Italian model has been looked at specifically, but I assure noble Lords that, in undertaking the work in the inter-ministerial team chaired by Paul Goggins, we are looking comprehensively at what more we can do. At the moment we believe that the UK is ahead of the game in the protection that we are able to give, but obviously we will look for any further intelligence.

Railways: High-speed Train Services

Lord Steel of Aikwood: asked Her Majesty's Government:
	What studies they have made of high-speed local train services in other countries.

Lord Davies of Oldham: My Lords, while the Government have considered a number of long-distance high-speed rail studies, I am not aware of any studies into high-speed local train services.

Lord Steel of Aikwood: My Lords, is the Minister aware that the proposed reinstatement of the line between Galashiels and Edinburgh proposes a journey time of a full hour, which is the same as it takes to drive? While I would not expect the Minister to comment on that, because it will be a devolved service, could not the Department of Transport encourage train operators throughout the UK to look at countries such as Spain, where diesels are used that have good acceleration and gradient-climbing capability?

Lord Davies of Oldham: My Lords, I will be careful, as the noble Lord invites me, not to trespass on to a devolved aspect of railways. New rolling stock is coming on-stream in Scotland that will improve the service. We are interested in improving the pick-up speeds of trains on local services, but when we talk about high-speed trains we are talking predominantly about trains that travel at over 125 miles per hour, which are obviously not suited for commuter services.

Lord Marsh: My Lords, does the Minister agree that there is a simple explanation for the difference between the foreign passenger railway systems and that in the United Kingdom? Does he agree that a large part of the problem is that overseas countries recognise that passenger railway systems need funding, and they provide funding and subsidies in an organised way? In this country, every time there is a change of Government there is a change of railway structure and funding policy.

Lord Davies of Oldham: My Lords, that may have been truer of the past than it is of the present. The noble Lord will recognise the substantial investment that is going into the railways and has been going in over the past decade. He will appreciate that conspicuous improvements are being made, particularly to our commuter and short-distance services, which were the basis of the Question from the noble Lord, Lord Steel.

Lord Berkeley: My Lords, is my noble friend aware that the French railway system, apart from the TGVs, is almost in meltdown through lack of maintenance and that there is serious concern there about the safety of some branch lines? Does he agree, therefore, that what we have achieved in this country has been a great deal better than what is happening in France? Our traffic is growing, and theirs is declining.

Lord Davies of Oldham: My Lords, it is always a pleasure to reflect on something at which we are better than the French, therefore I am glad to hear that confirmation from my noble friend. Commuter services, particularly, and short-distance services in Britain present one of the greatest challenges in Europe. There is no city quite like London for having to cope with the number of passengers who have to be moved each day. We are making very good progress in that area and in some respects compare favourably with the rest of the world.

Lord Renton: My Lords, although it is unsafe for trains to run fast on certain small branch lines, is it not the right policy to permit speed on the rail?

Lord Davies of Oldham: My Lords, obviously itis in the interests of the operating companies to transport passengers as rapidly as they can, consistent with safety. That is why new trains and new rolling stock have quicker pick-up times between stations in localised travel.

Lord Tanlaw: My Lords, I ask the Minister, with a declared interest, whether he is aware that I share his pleasure that people are coming off the roads and on to rail. In the commuter system using third rail a very large amount of carbon is discharged into the atmosphere by using old-fashioned steel conductor rails. Is there any study, such as that by the New York State Energy Research Association, that seeks to swap steel conductor rails for composite aluminium rails, which do not make such a mess?

Lord Davies of Oldham: My Lords, I am happy to confirm that, since the noble Lord last asked that question, I have studied it with even greater care. The third rail manufactured in the way that the noble Lord indicates has some advantages in operation with regard to carbon emission, but the construction of the rail is expensive and carbon-emitting intensive, so it is not clear that the noble Lord's proposal is cost-effective, even measured in terms of carbon.

Lord Faulkner of Worcester: My Lords, were there not more passenger railway journeys made in Britain last year than in any other country in Europe? Indeed, the number in Britain is higher than at any stagesince the days of the Beeching report. Is not the problem with Britain's railways that which thenoble Lord, Lord Marsh, mentioned: lack ofcapacity and investment? Will my noble friendlook sympathetically at Network Rail's request for substantial investment in rail capacity?

Lord Davies of Oldham: My Lords, that request will be looked at carefully. The Government certainly intend to continue their practice of increasing investment in rail and encouraging private investment. Next year we intend to publish our full plans on the future ofthe railways over a decade and more, when we will be able to inform the House about the nature of the investment that we envisage.

The Earl of Mar and Kellie: My Lords, when considering a new railway proposal, does the Minister assess its long-term benefits over, say, 60 years—for example, regeneration—or its immediate costs? If the latter is dominant, will that not lead to a less well engineered railway?

Lord Davies of Oldham: My Lords, we intend to take a long view on investment in rail, but thereis a limit to that. We are thinking of the 20-year period beyond 2007, while bearing in mind rail's contribution to combating climate change.

Energy: Nuclear Power Stations

Baroness Miller of Chilthorne Domer: asked Her Majesty's Government:
	Whether they are considering closing any nuclear power stations as a result of the Nuclear Safety Inspectorate's assessment that cracks in the reactor cores of six stations may compromise their operation.

Lord Davies of Oldham: My Lords, the Government are not considering any such action. Decisions about the continued operation of each of the UK's nuclear power stations are a matter forthe operators, British Energy and Magnox Electric, subject to rigorous regulatory oversight by the independent safety regulator, HSE's Nuclear Installations Inspectorate. I am satisfied that the regulators are fully engaged with the operators onthis and that this is not a matter on which the Government need to take any action.

Baroness Miller of Chilthorne Domer: My Lords, will the Minister accept that neither the operators nor the inspectorate actually knows either how the cracks will develop or what effect they will have on the core? Given that many of the stations are past their sell-by date already, is the Minister convinced that extending their life still further is a good idea? Will he further accept that it does not give the public much confidence that this report on aspects of essential nuclear safety was buried and had to be dragged out under the Freedom of Information Act?

Lord Davies of Oldham: My Lords, the report was not buried; it was relevant to the people who hadto take action consistent with the report. The inspectorate is in consultation with the operators to guarantee that effective action is taken. The noble Baroness will recognise that the alarm reflected in certain newspapers recently paralleled a similar occurrence five years ago, when the inspectors moved with dispatch to ensure the safety of the industry. She is right that two of the Magnox operations are coming close to the end of their working life, and action will be taken accordingly.

Lord Jenkin of Roding: My Lords, is it not clear that the problem of the cracks in the graphite blocks in AGR stations in fact has a long history that goes back a number of years? The report that the noble Baroness referred to, by a firm called Large and Associates, which purports to be a complete dossier of the correspondence between the inspectorate and British Energy, in fact is nothing of the sort. It is, if I may say so, a very partial document in both senses of that word. The Minister's answer that this is quite rightly left to the inspectorate must be supported. As the inspector, Mike Weightman, wrote in the Guardian yesterday:
	"We would not allow the reactors to continue operating if we were not confident in their safety".
	Cannot we put our entire trust in that?

Lord Davies of Oldham: My Lords, I indicated that the incident that was recently referred to in somewhat alarmist terms had been paralleled in 2000 and 2001. As the noble Lord has indicated, there have been features when the issue has arisen. The nuclear inspectorate has the right to and certainly would close down any reactor that looked at all as if it threatened safety standards. This is not about a threat at that level. This is a malfunction with regard to a limited aspect of the operation, not occasioning that kind of anxiety. The inspectorate has taken action to ensure that appropriate responses are made.

Lord Redesdale: My Lords, the Minister has said that we should not be too worried about the cracks in the graphite core, as there are cracks in the coresof Hinkley Point B, Hartlepool in Cleveland, Hunterston B, and Heysham 1 and there are suspected cracks at Dungeness and Torness. The Minister's view that we should not be worried contradicts what the inspector said in his report. The inspector concluded that there was,
	"an increased likelihood of increased risk should we agree to continued operation".
	Although it might not be dangerous as yet, if we are looking to plug the energy gap by increasing the life cycle of the AGR reactors, there could well be an incident.

Lord Davies of Oldham: My Lords, I do not want to minimise the concerns that the nuclear inspectorate identified with regard to the cracks and the requirement for action. If the noble Lord is going to quote the inspectorate, so am I: the Nuclear Installations Inspectorate does not view these as serious safety concerns. We are not talking about anxieties that lead to shut-down; we are talking about certain aspects of operating malfunction. I am not suggesting that we should be complacent about that situation; the Nuclear Installations Inspectorate is not paid to be complacent.

Lord Sewel: My Lords, is not one of the answers to the noble Lord opposite, perhaps in view of a future danger, that we should get on and build new reactors now?

Lord Davies of Oldham: My Lords, as I andthe noble Baroness who asked the Question have indicated, several Magnox reactors are reaching the end of their working life and need restoration or replacement. That issue will be considered in the energy review, for which the House will have to wait only a very short time.

Lord King of Bridgwater: My Lords, having represented for some 30 years the constituency in which the Hinkley Point AGR is located, during both its building and its operation, can I confirm to the Minister that the cracks in the graphite blocks were anticipated in the design and have been a matter of continuing importance to the NII in keeping the matter under review? Is not the answer to the noble Baroness who asked the Question that it is manifestly sensible to keep the AGR running, provided thatit can be operated safely, that that is the NII's responsibility and that it will not authorise its continued working unless it is safe?

Lord Davies of Oldham: My Lords, I do not have anything to add to those comments.

Lord Avebury: My Lords, will the Minister place in the Library of the House copies of all the reports that have been made to the NII concerning this problem?

Lord Davies of Oldham: My Lords, I will certainly look at that question, but I emphasise that such reports represent some of the documents on the working relationship between the operators and the inspectorate. My problem in immediately acceding to the noble Lord's request is the question of whether every inspectorate for all our industries should present all of their papers to the Library of the House. I am not convinced that that would be sensible.

Leicester City Council Bill

Read a third time, and passed.

Liverpool City Council Bill

Read a third time, and passed.

Maidstone Borough Council Bill

Read a third time, and passed.

Business of the House: Standing Order 47

Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That Standing Order 47 (No two stages of a Bill to be taken on one day) be dispensed with on Monday 17 July to allow the Consolidated Fund (Appropriation) (No. 3) Bill and the Finance (No. 2) Bill to be taken through their remaining stages that day. —(Baroness Amos.)

On Question, Motion agreed to.

National Lottery Bill

Lord Davies of Oldham: My Lords, I beg to move that the Commons amendment and reasons be now considered.

Moved accordingly, and, on Question, Motion agreed to.
	[The page and line references are to HL Bill 67 as first printed for the Lords.]
	Clause 7, page 5, line 13, leave out "prescribed"
	The Commons disagree to this amendment for the following reason—
	 Because it would not be appropriate to remove the power of the Secretary of State to prescribe descriptions of expenditure
	Page 5, line 19, leave out subsection (3)
	The Commons disagree to this amendment for the following reason—
	 Because it would not be appropriate to remove the power of the Secretary of State to prescribe descriptions of expenditure
	Clause 14, page 9, line 13, leave out "comply with" and insert "take account of"
	The Commons disagree to this amendment, but propose Amendment No.7A in lieu—
	 Page 9, line 17, leave out paragraphs (a) to (d) and insert ", specify matters to be taken into account in determining the persons to whom, the purposes for which and the conditions subject to which the Fund distributes money."

Lord Davies of Oldham: My Lords, I beg tomove that the House do not insist on its Amendments Nos. 1 and 2, to which the Commons have disagreed for their reasons 1A and 2A; do not insist on its Amendment No. 7, and do agree with the Commons in their Amendment No. 7A in lieu.
	The issue of prescribed expenditure has been debated fully during the passage of this Bill. For the reasons that we have previously explained in detail, we believe that the powers set out in Clause 7 are necessary. They serve an important purpose, given the exceptionally wide scope and large size of the Big Lottery Fund good cause. Covering as it doeshealth, education, the environment and charitable expenditure, the Big Lottery Fund good cause will be very different from the existing, much narrower arts, sport and heritage good causes.
	We therefore need to be able to set out at thevery highest level—I emphasise this—the types of expenditure on which the Big Lottery Fund should focus. We are talking about broad areas of expenditure—not projects or programmes, not the split between the four parts of the good cause, not the split between the four countries of the UK, and certainly not specific grants. We feel very strongly that this should be done in a transparent and accountable way, and that there should be proper parliamentary scrutiny. That is why we are clear that it should be done by secondary legislation, subject to the affirmative resolution procedure. We have made available an illustrative order, demonstrating how the power to prescribe expenditure will be used in practice.
	The ability to prescribe devolved expenditure is also central to achieving the greater devolution of decision-making to Scotland, Wales and Northern Ireland, which is the aim of this Bill. Amendment Nos. 1 and 2 would mean that the devolution arrangements in the Bill would not work. They would retain power for the Secretary of State where the Government's intention is to devolve it. For that reason, we cannot accept Amendment Nos. 1 and 2 and I urge the House not to insist on them.
	On Amendment No.7, I acknowledged at Third Reading that concerns about the perceived level of government control over the Big Lottery Fund were strongly and genuinely felt—both Front Benchers made these points substantially in debate. I did not accept that these concerns were entirely justified, but I undertook that the Government would amend the Bill to address them. That is what Amendment No. 7A does. We proposed our own amendment because Lords Amendment No. 7 would have put the Big Lottery Fund on a very different footing from that of all the other lottery distributors. It would have required the fund to "take into account" rather than "comply with" the important financial directions that we issue to all lottery distributors to ensure the proper use of public money. Amendment No. 7A brings the Big Lottery Fund into line with the other distributors in respect of both policy and financial directions.
	I recognise that there has been some concern that our amendment maintains the power in new Section 36E(1) for the Secretary of State to issue any direction, which must be complied with. I emphasise that this is just not the case. The power to issue directions set out in new Section 36E(1) must beread together with the rest of that section, inparticular subsection (2). That subsection, under our amendment, provides that, where the Secretary of State intends to give directions under subsection (1) in relation to policy matters, her power to do so is restricted to giving directions specifying the matters to be taken into account by the Big Lottery Fund. The effect of new Section 36E is the same in relation to policy directions, despite the differences in drafting, as the effect of Section 26(1) of the National Lottery Act etc. 1993, which currently obtains. The Big Lottery Fund will be in the same position as all the other lottery distributors, a point on which we lay great emphasis.
	I hope that the House will recognise that we have listened carefully to the views expressed during the passage of this Bill, and have been prepared to make changes where we believe that they are necessary. I therefore urge the House not to insist on their Amendment No. 7 but to agree with AmendmentNo. 7A.
	Moved, That the House do not insist on its Amendments Nos. 1 and 2, to which the Commons have disagreed for their reasons 1A and 2A; do not insist on its Amendment No. 7, and do agree with the Commons in their Amendment No. 7A in lieu.—(Lord Davies of Oldham.)

Viscount Astor: My Lords, I am grateful to the Minister for his explanation. He listened to the concerns that we raised throughout the passage ofthe Bill in this House, and those concerns were largely addressed when the Bill went back to another place. That was extremely important, because we were concerned that the Big Lottery Fund, which, after all, is going to hand out 50 per cent of all the proceeds for distribution, was not going to operate on the same basis as the other distributing bodies. The Secretary of State's power was greater than it was in relation to the other bodies and we felt that it should be the same. The Minister has made those changes.
	More importantly, he has given us an assurance in writing that there is no possibility that the Secretary of State will be able to issue a direction under subsection (1) of new Section 36E to specify where lottery money is to be given. That is important because concerns have been expressed that, in the past, the principles of additionality have been broken by the distributing bodies. We had some clear examples of that as we went through the Bill, and the Minister's explanation has helped to assure us that it will not happen again. That is given greater strength by the amendments that the Minister acceptedat Third Reading, whereby under the Bill the distributing bodies will have to produce a report on additionality.
	We welcome the Government's amendments and we thank the Government in this instance for being a listening Government. It does not happen very often but we must be very grateful when it does.

Lord Clement-Jones: My Lords, I, too, thank the Minister for his exposition. We had an important debate on prescription and compliance and there was a difference of opinion, but the Government listened and took account of the views that were held. In terms of the subject matter and the thematic approach to lottery funding, there was no argument that at the high level it was right that there should be an element of specification. However, in the detail and at the project level, we all felt that there was potential for prescription and for forcing the Big Lottery Fund to comply, and we felt that the Bill was wrongly set out in that regard.
	The Government subsequently agreed in spirit to the opposition amendments and they have brought back what they believe to be the right way of expressing this in the Bill. On some of these issues, this is wet towel time, but I regret that this is a somewhat convoluted way of giving the Government the ability in the Bill to force compliance with a direction, which then means that something has to be "taken into account". It seems to me that this two-stage process was more elegantly put in the original amendment, but those are the strange ways of parliamentary draftsmen, and who are we mortals to argue in the circumstances? I agree with the noble Viscount that, ultimately, the Government have come up with an amendment that meets the case, convoluted though it may be.

Lord Davies of Oldham: My Lords, I am grateful to both noble Lords, who have contributed to our final debate on the Bill. The various stages of the Bill have been extremely fruitful and constructive. I cannot pretend to noble Lords who have not been privy to all our discussions that it has always been sweetness and light between the three sides, but we have recognised that noble Lords opposite have been keen to ensure that the most accurate representation of the position as they saw it has been effected within the broad principles and framework of the Bill. We have differed to a degree, but I am happy that we have reached agreement on these amendments.

On Question, Motion agreed to.

Police and Justice Bill

Lord Bassam of Brighton: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The LORD SPEAKER in the Chair.]
	Clause 28 agreed to.
	Clause 29 [Power to confer additional functions on Chief Inspector]:

Baroness Henig: moved Amendment No. 140:
	Page 27, line 41, leave out subsection (3).

Baroness Henig: Amendment No. 40 is a probing amendment. Clause 29 provides Ministers with wide-ranging powers to confer additional functions of inspection on the chief inspector by order. I will be interested to hear from my noble friend what additional functions it is envisaged might be conferred in that way. Of more concern are the provisions of Clause 29(3) which would enable Ministers to amend any piece of primary or subordinate legislation as part of such an order. That seems to be a very wide-ranging prospect indeed. It would be helpful to know in what kind of instances the power to amend legislation by order might be used.
	Amendments Nos. 141, 142 and 145 simply seek to ensure that the bodies subject to inspection are consulted by Ministers. That would apply if an order were to be made or to the directions given to the chief inspector by Ministers. The key point about inspection is that it should drive improvements in performance; it should not be about catching people out or creating unnecessary burdens. It is important that those subject to inspection—police forces, authorities and others—have a chance to work with Ministers and others to ensure that we have an inspection regime that is, to coin a common phrase, fit for purpose. In that constructive spirit, I beg to move.

Baroness Harris of Richmond: I support the amendments tabled by the noble Baroness, Lady Henig. As she has so clearly outlined, the amendments all relate to including in the prescribed list of consultees the bodies being inspected. They cover consultations about additional functions to be conferred on the chief inspector, ministerial directions to the chief inspector to conduct particular inspections and the formulation by the chief inspector of inspecting programmes and frameworks respectively.
	The preambles to the subsections amended by Amendments Nos. 141 and 142 contain provisions that the Secretary of State needs to consult only those organisations that appear to be appropriate, but the last amendment, relating to consultation by the chief inspector on inspection programmes and frameworks, contains no such condition and would be mandatory. It seems to these Benches entirely reasonable that the organisations that are subject to inspection should have an opportunity to express a view on those key provisions.

Baroness Anelay of St Johns: I support the amendments tabled by the noble Baronesses, Lady Henig and Lady Harris of Richmond. I share their concern about the order-making power in Clause 29. I referred to it very briefly last week when we debated the large group of amendments in the name ofthe noble Lord, Lord Ramsbotham. It gives the Government a wide power under which the inspectorate could be directed in ways that would be difficult for anyone to foresee at this stage.
	When, on 28 March at col. 244, my honourable friend Nick Herbert raised objections in another place to this provision, the Minister, Fiona Mactaggart, argued, at col. 247, that at the moment the Government have the power to confer additional functions on many of the criminal justice inspectors by fiat. She said that one reason that the Government are seeking to include the provisions in the Bill is to obtain parliamentary scrutiny by consideration of any order that comes before either House. I agree with my honourable friend that we should be concerned about such a power being relegated to an order-making power, especially one that currently uses the negative procedure.
	My brevity in speaking today should not be taken as any lack of support. I strongly support the noble Baronesses.

Lord Bassam of Brighton: I fully understand that concern has previously been expressed about the apparent breadth of the consequential amending power in Clause 29(3)—in particular that it might be used to alter the nature of the chief inspector's inspection functions. I want to make clear that that has never been our intention. The clause relates only to any additional non-inspection functions that Ministers might wish to confer on the chief inspector in future. In another place, we amended the wording of subsection (1) to make that clear.
	In the context of such hypothetical non-inspection functions, we consider it sensible to allow maximum flexibility to accommodate adoption by the inspectorate of new functions in the future. Such functions might relate to activities referred to in other legislation. For example, Schedule 1l(11) amends the Police Act 1996 to enable the new inspectorate to continue to contribute to the membership of police appeals tribunals. Consequential amendments to the present provision might also be needed—for example, to make further arrangements under Schedule 9 in respect of staffing or expenditure consequent on additional functions.
	The power to make such consequential amendments, in so far as it is used to amend primary legislation, will be subject to the affirmative procedure, as stated in Clause 47(5)(b), so parliamentary scrutiny of its use in that respect is guaranteed. As the power relates only to non-inspection functions, we do not consider it appropriate to add a consultation requirement relating to bodies which are to be inspected.
	Amendment No. 142 seeks to add the body or bodies which are to be inspected by the chief inspector to the list of bodies that must be consulted before Ministers direct the chief inspector to carry out an inspection. Such a direction may be in respect of any specific part or aspect of the courts, criminal justice or immigration enforcement systems, or any specific matter falling within the scope of the chief inspector's duties.
	That power is intended for use in particular in situations where significant under-performance by a part of one of the inspected systems is causing ministerial and public disquiet or concern, or to commission an investigation by the chief inspector of a serious incident relating to the areas of work inspected—such as that recently carried out by the Chief Inspector of Probation in the case of Rice. We do not consider that it would be appropriate for Ministers to be required formally to consult the body which was to be subject to such an inspection or investigation. In practice, Ministers are likely to take the advice of senior officials, including the chief of the body concerned, when deciding what action to take. To go further than that would risk damaging the flexibility and independence which are crucial in such interventions.
	Amendment No. 145 adds the body or bodies which are to be inspected by the chief inspector to the list of bodies that must be consulted by the chief inspector on his proposed inspection programme and inspection framework.
	We indeed intend that the chief inspector shall consult the inspected bodies on the inspection programme. Accordingly—I am sure that this will bring some cheer—I am happy to accept Amendment No. 145 in principle. We would envisage a provision whereby the chief inspector was under a duty to consult on the inspection programme with the bodies that he proposes to include in that programme and we will bring forward such an amendment at Report.
	I trust that, having heard that, the noble Baroness will feel able to withdraw her amendment and that Members of the Committee will work with us to achieve what we jointly want in the spirit of Amendment No. 145.

Lord Dholakia: I have a particular interest in this matter because, when HMI used to carry out inspections, it was very keen on consulting bodies such as the Commission for Racial Equality on the impact on racial equality. Can the Minister confirm that the provision is in no way intended to inhibit the consultation of bodies such as the Commission for Racial Equality, so that the racial element in inspection is fully aired and examined?

Lord Bassam of Brighton: I cannot immediately envisage circumstances that would disturb the arrangement which the noble Lord describes, so I am happy to give that assurance.

Baroness Henig: I thank my noble friend for his explanation and for the move that he has made on Amendment No. 145. There is not entirely a meeting of minds on the other amendments. None the less, at this point we are very happy with what has been said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 141 not moved.]
	Clause 29 agreed to.
	[Amendment No. 142 not moved.]
	Clause 30 agreed to.
	Clauses 31 and 32 agreed to.
	[Amendment No. 142A not moved.]
	Clause 33 agreed to.
	Schedule 9 [Her Majesty's Chief Inspector for Justice, Community Safety and Custody]:

Baroness Henig: moved Amendment No. 143:
	Page 104, line 4, at end insert-
	"( ) In exercising his functions to inspect police authorities, the Chief Inspector will involve individuals nominated by persons he considers to represent the interests of police authorities to assist in conducting such inspections."

Baroness Henig: I very much hope that the Government will accept Amendment No. 143, although I hope I am not pushing my luck too far. The amendment relates to the inspection of police authorities, because the Bill provides for police authorities to be subject to inspection by the new inspectorate. This is something of a departure, because currently police authorities can be inspected only in respect of their best-value duties. I strongly welcome the principle of this, as I know do my colleagues in the Association of Police Authorities, because it is right that police authorities should, like other public bodies, be subject to open and transparent inspection.
	Clearly, the new single inspectorate will be a different creature from the existing bodies, but equally, as now, I am sure the inspectors willinclude among their ranks existing practitioners, ex-practitioners and professionals. Her Majesty's Inspectorate of Constabulary is very much made of former and serving police officers. Although there has been some recent diversification, involving a number of lay inspectors, it still mostly comprises ex-police officers. Although I have the greatest respect for Her Majesty's Inspectorate of Constabulary—indeed, I always found it to be an invaluable source of advice and expertise when I was a public authority chairman—I am sure the Committee will agree that it would be inappropriate for the public authority, whose job it is to oversee and scrutinise police forces, to be inspected by a body made up mostly of persons who were, or are, members of those forces.
	I had the interesting experience last year of being involved in a prototype inspection of a public authority. I know that HMIC colleagues, who had been rather dubious about including public-authority input, quickly realised during that exercise that such involvement was essential. My amendment therefore aims simply to ensure that, in any inspection of a public authority, the inspection team should include individuals with knowledge, expertise and experience of public authority issues. This is a sensible and essential step, and I commend the amendment to the Committee. I beg to move.

Baroness Harris of Richmond: I warmly support the amendment proposed by the noble Baroness, Lady Henig. As she said, it is absolutely right that we should have open and transparent inspection for police authorities, which we have long wanted, with the means to the end being how we achieve it. Many police authority members have gained expert knowledge over the years since the Association of Police Authorities was formed. I would warmly welcome long-serving police authority members being specially trained to undertake peer review. It is, after all, in their and everyone's interest that police authorities perform at optimum level.

Baroness Anelay of St Johns: I add my voice in support of the amendment. The noble Baroness, Lady Henig, has made a very practical proposal. These people have very broad experience of police matters through their service on police authorities. It would bring an extra dimension to inspections, without in any way undermining their independence and integrity. I hope that the Government are prepared to look kindly on this proposal.

Lord Dholakia: I, too, support the amendment. The noble Baroness, Lady Henig, and my noble friend Lady Harris of Richmond, with their vast police authority experience, can give an insight into how helpful this proposal would be to inspectors when local matters are investigated. At one time, I was a member of a police authority in Sussex, the county from which the Minister comes. In any inspections the inspectors always made sure that local members of the police authority were present and they were able to assist him on issues which would be of paramount importance to that party. I very much hope that the Minister will take on board this very important point.

Lord Bassam of Brighton: I shall prefigure my comments by saying that there may be some warmth in them, but, ultimately, I am afraid that there has to be rejection. However, I hope that that will not entirely colour Committee Members' expectations of what I shall say. The paragraph to which this amendment has been tabled already imposes a general duty on the chief inspector to secure that there is available to him sufficient expertise and experience—which is the relevant part—relating to the systems and organisations falling within the scope of his duties.
	In imposing that duty, the Government fully recognise that inspection not only of police authorities but also of police operations, prisons, courts and offender management all involve specialist knowledge and an in-depth understanding of quite distinct cultures and working environments. In addition, they may require the importation of professional judgments and expertise from areas outside the criminal justice system—for example, healthcare in prisons or work with young offenders. That may be achieved by maintaining and developing expertise in the inspectorate's staff through the use of professional advisers and perhaps by working jointly with other inspectorates, such as the healthcare inspectorate, wherever necessary or required.
	Paragraphs 8, 11 and 12 of Schedule 9 strengthen the abilities and requirements for such joint working. In particular, paragraph 12(2) provides that inspections of police authorities must be carried out jointly with the Audit Commission. It would be at best an unnecessary encumbrance to make it a statutory requirement to involve in an inspection individuals representing the interests of particular inspected bodies. At worst, to require such persons to be part of the inspection team and regime could undermine the independence of the inspection process. I do not think that anyone wants to interfere with that independence; after all, it has been a much-hallowed value during our debates about the future of the inspectorate.
	We expect that the managers of inspected bodies will continue to be engaged with closely by the inspectorate about emerging inspection findingsand be able to comment on inspection reports before they are published. But, ultimately, it must be for the chief inspector to decide the nature and degree of involvement of those inspected in the inspection.
	We understand entirely the sentiments behind the amendment and recognise the need for expert and professional advice to be available to the inspectorate, but we do not want to fetter or interfere with the important independence that it must have in order to retain public credibility and for inspectorate reports to enjoy the respect they currently have. There is probably scope for further discussion outside the parameters of the debate on this amendment, but ultimately we have to resist it.

Lord Dholakia: The Minister talked about warmth at the start of his response to this amendment. If the inspectorate is independent, what is wrong with the inspector determining who would be the most useful people to assist it? Why should not members of a police authority with particular expertise assist in the process? What is the problem here?

Lord Bassam of Brighton: I agree with the noble Lord. There is nothing wrong with the inspectorate taking advice from a wide range of professionals and looking at other views, but to prescribe in the Bill that the inspector:
	"In exercising his functions...involve individuals nominated by persons he considers to represent the interests of police authorities",
	is unnecessarily inflexible and could, in certain circumstances, interfere with the independence of the inspectorate. As I explained, we do not rule out the involvement of those with knowledge and expertise of the work of police authorities—

Baroness Harris of Richmond: I am most grateful to the Minister for giving way. Where are the special people who know about police authorities to come from within the police inspectorate? The inspectorate will not know about police authorities; that is the whole point. Police authorities know best how to inspect themselves, and as I said earlier in supporting the amendment of the noble Baroness, Lady Henig, that can be achieved with a certain amount of training.

Lord Bassam of Brighton: At the outset I made the point that the inspectorate may require the importation of professional judgments from areas outside the criminal justice system. Police authorities are outside the criminal justice system as they are formed from a mix of elected councillors and appointees. I do not rule out those with knowledge providing advice to the inspectorate, should it think it appropriate during an inspection.

Baroness Henig: My noble friend will understand when I say that I am a little disappointed by some of what he has said. In inspections of local government there is an element of peer review. Indeed, when the Audit Commission undertakes inspections, the peer review is invaluable. I do not understand why it is not the same here.

Lord Bassam of Brighton: I do not rule out the involvement of an element of peer review. I sought to make clear that we do not feel it is appropriate to prescribe it in the Bill.

Baroness Henig: I thank my noble friend for that elucidation. No doubt we will want to discuss the issue in a more informal way because there may be some misapprehensions about what can be achieved through guidance or in a way other than on the face of the Bill. I understand that. I am not sure whether I go along with him on the undermining of independence. What he says is clear, but having taken part in an inspection last year I do not think that in any sense I undermined anyone's independence. None the less, I think I understand the message here; at this stage I shall withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 144 and 145 not moved.]

Baroness Harris of Richmond: moved Amendment No. 146:
	Page 107, line 1, leave out paragraph (a).

Baroness Harris of Richmond: These amendmentsto page 107 would remove references to police authorities being subject to joint inspection with the Audit Commission so that they would be subject to inspection only by the new CJS Inspectorate. I argued the other day that the Audit Commission does not have the necessary skills or experience to inspect police authorities; it is the auditor of police authorities, and rightly expert in that role, which it does very well. We regard this, though, as a distinctly separate function and an essential safeguard on financial probity; we would not want these separate functions blurred.
	As we have said, we do not believe that Her Majesty's Inspectorate of Constabulary or the elements which will transfer to the new CJS Inspectorate have all the requisite expert knowledge to conduct police authority inspections either, as we have just been discussing, but they have a great deal more experience in this area than the Audit Commission. They have engaged in joint work with the APA and police authorities to develop and improve inspection frameworks, which have been extremely helpful. We agree that the audit activities of the Audit Commission could and should be better joined up with inspection activities to reduce duplication, but we do not think that joint inspection will necessarily achieve this. It could have the opposite effect if different sets of inspectors have different ideas about what should be inspected and how. That quite often happens.
	Once again, the Audit Commission should have no locus whatever in the inspection of police authorities. It is not competent to do this work. I beg to move.

Lord Bassam of Brighton: The amendment would remove the requirement for the Audit Commission and the Auditor General for Wales to work jointly with the new inspectorate to inspect police authorities.
	The involvement of the Audit Commission in this area is nothing new; it has a long history of playing a valuable role in the inspection of police authorities. The Audit Commission can be rightly proud of its record in the inspection of the quality and cost-effectiveness of a wide range of local services, including local government and criminal justice bodies. We take the view that it is right that it should continue to be involved once the new inspectorate is established. Furthermore, as we discussed during our debate on the amendments to the best value regime in respect of police authorities in Part 1 of the Bill, the Audit Commission will still retain the duty toensure that police authorities secure continuous improvement under the best value regime.
	The joint action provisions in the Bill are designed to ensure that the various bodies are inspected in a joined-up way where more than one body has a role to play in inspecting them. The new inspectorate's remit will overlap with that of the Audit Commission. Given the importance of the role and the duties of the commission, it is important that the two bodies act as one to ensure efficiency and that inspected bodies are not burdened with repeated inspections by one organisation and then another. On that basis, it is sensible to leave this duty in the Bill to ensure consistency in joint inspections.
	In the light of my assurances, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Harris of Richmond: I thank the Minister for his response but not for what was going on behind it. In no way has he taken account of what I said the other day about where the Audit Commission should sit in the inspection of police authorities. I should point out that I have written to the Minister.

Lord Bassam of Brighton: Perhaps I may confirm to the noble Baroness that I have received the correspondence and just this day I have invited our officials to give it further consideration.

Baroness Harris of Richmond: I am most grateful to the noble Lord. I hope that he and his officials will understand more clearly what I am getting at, because it did not seem to make much sense earlier on.
	As the noble Lord said, the Audit Commission plays a very valuable role in the inspection of police authorities on the financial side. It has no other remit in police authority inspection. I hope that when the officials eventually look at this more closely, they will agree that the Audit Commission should not be inspecting police authorities. The commission does an excellent job on the financial side, and we are very happy for it to continue doing that. But the inspection of the work of police authorities is not for the Audit Commission; it is charged with seeing continuous improvement. As I said last week, that has not taken place anywhere, in any of the Audit Commission's work. There must be continuous improvement. Taking away from police authorities the tools that ensure continuous improvement means that we are not going anywhere.
	I ask the noble Lord and his officials to look at what I have said. Best value is far too important to leave out of the Bill. I will gracefully retire from this amendment but I will definitely come back to it on Report.

Earl Ferrers: The Minister said that the Audit Commission would look at this in a joined-up way. What did he mean by that?

Lord Bassam of Brighton: With his long experience as a Home Office Minister, I am sure that the noble Earl, Lord Ferrers, understands entirely what working in a joined-up way means. I take it to mean that the Audit Commission will work very closely with the inspectorate to ensure that the police authority is performing its duties as it should.

Baroness Harris of Richmond: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 147 not moved.]
	Schedule 9 agreed to.
	Clause 34 [Abolition of existing inspectorates]:
	[Amendment No. 148 not moved.]
	Clause 34 agreed to.
	Clause 35 agreed to.
	Schedule 10 [Transfer of staff and property etc to the Chief Inspector]:
	[Amendment No. 149 not moved.]
	Schedule 10 agreed to.
	Clause 36 agreed to.
	Schedule 11 [The Chief Inspector: consequential amendments]:
	[Amendments Nos. 150 to 171 not moved.]
	Schedule 11 agreed to.
	Clause 37 [Interpretation]:

Lord Bassam of Brighton: moved AmendmentNo. 171A:
	Page 31, line 4, at end insert-
	""the Audit Commission" means the Audit Commission for Local Authorities and the National Health Service in England and Wales;"

Lord Bassam of Brighton: This is a purely technical amendment to clarify the references to "the Audit Commission" in Clause 29(6)(e) and paragraph 10(2)(e) of Schedule 9 by inserting in Clause 37(1) a definition referring to its full name, the Audit Commission for Local Authorities and the National Health Service in England and Wales. I beg to move.

On Question, amendment agreed to.
	Clause 37, as amended, agreed to.
	Clause 38 agreed to.
	Clause 39 [Increased penalty etc for offence of unauthorised access to computer material]:

Lord Bassam of Brighton: moved AmendmentNo. 171B:
	Page 32, line 10, leave out from beginning to "subsection" in line 11 and insert-
	"(1) In the Computer Misuse Act 1990 (c. 18) ("the 1990 Act"), section 1 is amended as follows.
	(2) In subsection (1)-
	(a) in paragraph (a), after "any computer" there is inserted ", or to enable any such access to be secured"; (b) in paragraph (b), after "secure" there is inserted ", or to enable to be secured,".
	(3) For"

Lord Bassam of Brighton: Before I get into the body of my comments, I should like to say that I welcome that the noble Earl, Lord Northesk, has tabled Amendments Nos. 172, 174 and 176 to reflect the fact that further changes need to be made to the Computer Misuse Act 1990, to ensure that all forms of computer hacking are outlawed. We have been informally consulting on making changes almost identical to the ones that he has identified. He may tell me otherwise, but I understand that his Amendments Nos. 172 and 174 contain slight drafting errors. We have therefore decided to table separate versions of his amendments, Amendments Nos. 171B and 173A.
	Section 1 of the 1990 Act makes it an offenceto access a computer without authority. The amendments would extend this to include enabling access to be gained without authority. We share the noble Earl's belief that the proposed amendments are important because there is a ready criminal market in software tools to gain unauthorised access to others' computers. The intent is therefore to ensure thatan offence would be committed where the person's intention is merely to enable someone else to secure unauthorised access—or, for that matter, to enable the person himself to secure unauthorised access at some later time.
	The proposed amendments to Section 3 of the Act would clarify that a person can commit a Section 3 offence by being reckless as to whether, for example, a computer will be impaired, although impairment was not his intent. The amendments will also make it an offence for a person to commit an unauthorised act in relation to a computer with the intent of enabling a person to commit a Section 3 offence.
	We must make it absolutely clear that it will not be a defence to suggest that the intention was not to impair the operation of a computer. It is enough that the act was unauthorised and that, by committing such an act, there was recklessness as to whether the act could have caused impairment to the operation of a computer. We must also ensure that it is understood that enabling a person to commit a Section 3 offence is an offence in its own right.
	Government Amendments Nos. 178A, 178B and 178C make transitional provisions to ensure that the proposed changes to the Computer Misuse Act do not impact on offences committed before this Bill comes into force. We have also made amendments to Schedule 15 with Amendments Nos. 193A, 193B and 193C, which are consequential to amendments made to Clause 39. I look forward to hearing what the noble Earl has to say about his amendments. I trust that he will feel able to withdraw them and that he will be content to support those that stand in the name of the Government. I beg to move.

The Earl of Northesk: With the leave of the Committee and at the invitation of the noble Lord, Lord Bassam, I shall speak to my amendments in this group. At the outset, I should offer my guarded congratulations and thanks to the Government on bringing forward these changes to the CMA. As the Minister is only too aware, I and others, not least the Internet All-Party Group, have been calling for some time for the legislation to be updated to make it clear that DoS attacks—denial of service attacks—are unlawful. As they stand, Clauses 39 and 40 go some way towards achieving that in a rather more coherent way than my somewhat ham-fisted Private Member's Bill of four years ago. Nevertheless, as the Minister has explained, gaps remain in the provision. In particular, the current drafting does not deal with the problems caused by botnets, zombie infections and the like.
	I need not dwell too much on the nature of the problem because the Minister has explained that well enough, but it might be helpful to put this into some sort of context. For example, in 2005 the Federal Trade Commission estimated that something of the order of 150,000 computers were hijacked daily as a means of launching a criminally motivated DoS, spamming and fishing attacks. In a similar vein, Gartner, the analysts firm, estimated recently that up to 70 per cent of all spam is generated by zombie machines. In monetary terms, it is estimated that these categories of DoS attack cost internet service providers $500 million every year in excess trafficand customer churn alone. Clearly, therefore, they constitute a serious threat for which adequate provision should be made in law.
	Having tabled my amendments ahead of the Government's, I can only express my gratitude that the Government have seen fit to endorse my proposition. I am indifferent as to which version finds favour with the Committee; if mine are defective, I am quite content to accept that. Be that as it may, I confess to a certain amount of embarrassment. Although drafted to deal with a specific and palpable problem, I had intended them merely to be probing in character, because I have residual and serious concerns about how effective the provisions will be in practice.
	Access to IT systems can be denied for awhole host of reasons. Notwithstanding the scale of maliciously motivated attacks to which I have already referred, the bulk of such denials are attributable to wholly natural or, dare I say it, innocent causes. At the most basic level, connections to the internet can be rendered unreliable or inoperable by pure weight of traffic, as occurred with the 1901 census site when it went online. By analogy, congestion on our roadsis a considerable irritant, but it is not—so far asI am aware—criminal. By the same token, pooror inadequate server or website architecture is commonplace and gives rise to serious access problems. To state the obvious, internet and website performance is dependent on appropriate and adequate levels of quality of service, the apparent absence of which seems to be a persistent feature of government IT projects.
	In passing, I cannot resist mentioning today's media reports of significant problems with the Passport Office's online systems. Some might even be tempted to argue that this is a particular feature of the PDVN, on which we all rely. Moreover, it is inevitable that these systemic weaknesses are exploited, deliberately or not, by the perpetrators of DoS attacks. The difficulty is that the Bill makes no distinction between those occasions when IT systems slow down and crash as a result of criminal or malicious interference and when they fail for entirely natural reasons. Indeed, that is compounded by the fact that proper analysis of any particular system crash is a profoundly technical matter, more often than not beyond the technical expertise of law enforcement and the judicial process.
	An even greyer area is the status of cyber protest, or online lobbying, numerous examples of which exist, such as the pro-Zapatista group, Electronic Disturbance Theatre, or the French group, Federation of Random Action. At its most fundamental, the internet is a means of communication—a hugely powerful one, but a means of communication none the less. As such, it has enormous potential to empower, enrich and liberate the individualcitizen. To that extent, it is crucially important that internet law be drafted, so far as is possible, not to constrain freedom of expression and of association unnecessarily or disproportionately. By its very nature, cyber protest, although of course not criminally motivated, will often mimic the effects of a DoS attack. Occurrences of it will therefore be potentially prosecutable under the Bill, particularly if one considers the full implications of Clause 40(5)(b).
	By way of another example, blogging, particularly in the political sphere, is becoming increasingly popular. We should welcome that, especially in terms of public engagement with politics. But if a particularly successful blog generated so much traffic that it crashed the server on which it was hosted—an equivalent of a DoS attack—would its author and those accessing the site have committed an offence under these provisions? As I interpret it, the drafting is unclear on the point. If the answer is yes, that cannot be right. Nor do I believe, given the technical complexities involved in this whole area and the breadth of the existing provision, that it is appropriate to fall back on the interpretation of the courts. As legislators, we should be capable of stating our intent with much greater clarity than this.
	I have a number of other, wider concerns which, conscious of time, I will merely list. First, there are huge problems associated with definitions of "legitimate authorisation" in so far as they relate to the online world. Secondly, there are palpable concerns about how enforceable the provisions will be. After all, prosecutions under the CMA are rarer than those for murder. Thirdly, huge question marks hang over the capacity of law enforcement and the judicial process to attend to the issue in terms of both resources and training. It is worth noting that there is no mention of the word "computer" in SOCA's recently published annual plan, notwithstanding that the NHTCU has been subsumed into it. The Bill does not attend to any of those matters.
	I apologise to the Committee for having spoken at such length. As I say, I welcome the Government's attempt to bring DoS attacks within the scope of the CMA. It is a small step in the right direction. That said, I am unconvinced that the insertion of these odd few confused clauses at the tail end of a portmanteau Bill demonstrates either adequate understanding of the complexities of the issues or firm resolve to attend to the whole corpus of internet crime. Rather, they are a desultory attempt to use no more than a sticking plaster to mend a broken leg. What is needed above all else is a wholesale rewrite of the CMA, not only to take account of how far technology has moved on since it was enacted, but also to weave in the intricacies of associated civil liberty issues. To be blunt, I fear that ultimately these clauses will create more problems than they solve.

The Earl of Erroll: I have had a certain amount of e-mails and discussions about these clauses. In general I think they are a good idea, so they should go through. There is very little difference between the Government's amendments and those of the noble Earl, Lord Northesk. The only thing I would add is that it has always worried me how you define the difference between a denial-of-service attack where it comes from one point or a set of netbots, and someone demanding that everyone lobby their MP on a particular issue so that suddenly 100,000 e-mails are sent from different single points to one central server. Actually, maybe the latter case should be made illegal, although I cannot think how it could. I apologise for hesitating; I had not thought this out very hard. There are problems around it that probably need to be addressed, as the noble Earl was saying. With the general proviso that we need to think further about the issue, I welcome these amendments.

Lord Bassam of Brighton: I have heard what both noble Earls have had to say on this subject. The noble Earl, Lord Northesk, is well regarded in your Lordships' House for his knowledge and interest in, and dedicated consideration of, these issues. I have great respect for him for the work he does.
	I shall respond to a couple of points that the noble Earl raised. Just to clarify this point: the Bill distinguishes systems interference due to criminal action from that due to accidental action by whether the access modification is unauthorised and whether or not the person has the necessary mens rea. It will ultimately be for the courts to decide on the facts whether an individual protest crosses over into unauthorised and hence criminal activity.
	The noble Earl raised the prospect of a rewrite of the Computer Misuse Act 1990. We have consulted the industry, including the APIG, which the noble Earl mentioned, and others on this issue over two years. We concluded that the consultation did not highlight the need for a complete rewrite of the Act, but these changes reflect the issues that were raised as fruit of that consultation. I know that legislation in this field is an art of perfection for the noble Earl but we seek, as ever, to keep the industry well informed and well briefed on our thinking. We consult regularly, take on board the results of those consultations and try to reflect them where relevant in any necessary changes to legislation. I am very grateful for the noble Earl's work on this. I accept that he will never be entirely happy and satisfied with what we are attempting to do, but I hope that he will feel reasonably content and that he will not press his amendment.

On Question, amendment agreed to.
	[Amendment No. 172 not moved.]

Baroness Anelay of St Johns: moved Amendment No. 173:
	Page 32, line 13, after "person" insert "aged 18 years or over"

Baroness Anelay of St Johns: I wish to speak to Amendments Nos. 173, 175 and 177. These are probing amendments that reflect concerns raised by the All-Party Children's Group in its child impact statement.
	Clause 39 amends Section 1 of the Computer Misuse Act 1990, and introduces new penalties for unauthorised access to computer material. Clause 40 amends Section 3 of the same Act and again introduces new penalties for an unauthorised act with intent to impair the operation of a computer. Clause 41 amends the same Act, introducing new penalties for making, supplying or obtaining articles for use under the previous sections.
	The problem is that it is unclear whether these offences can apply to young people under 18; if so, they would not appear in the Crown Court. Therefore, the maximum penalty available in the youth court would be a two-year detention and training order. We have tabled this amendment because we and the all-party group would be grateful if the Minister could clarify the Government's intentions on this matter. I beg to move.

The Earl of Erroll: When I saw the amendment I wondered what its purpose was since a lot of the relevant damage is done by under 18 year-olds who regularly try to disrupt computer systems for fun. They may start at the age of 10 or 12 playing around, then they learn a bit more, and then they learn a bit more at school. The thought that none of this would apply to under-18s was greeted with horror in some circles. I have discovered that it is a probing amendment on exactly how the matter will be dealt with in the courts, but I should like to make it clear that under-18s should not be exempted from responsibility for some highly destructive actions, because they are very often the perpetrators.

Lord Bassam of Brighton: I am grateful to the noble Baroness for speaking to the amendments, but ultimately we cannot commend them to the Committee. We believe that criminal responsibility should apply as much online as it does in the physical world—I almost said the metaphysical world—but we do not believe that there is a need to treat Computer Misuse Act offences differently from other offences. Under-18s are capable of understanding the consequences of their online actions in the same way as they do their offline actions. I often think that they understand online consequences far more clearly than people of our generation. I ought to put in a disclaimer of sorts there, but having noticed my teenage children working online, that certainly is the case.
	That said, any under-18s who commit an offence under these provisions would be eligible for a fine or warning if they admitted their guilt and it was their first or second offence, in which case the young person can be assessed to determine the causes of their offending behaviour and to identify a programme of activities to address them.
	I hope that, having heard that explanation, the noble Baroness will withdraw the amendment.

Baroness Anelay of St Johns: As I made clear, this is a probing amendment to meet the requirements of the all-party group, to which the noble Lord's comments will not come as a surprise.
	The difficulty is that all of us have noted the Government's split personality. On some occasions 16 to 18 year-olds are treated as adults but on other occasions they are treated as juveniles. On occasions such as this we are not sure exactly how they will be treated. I accept that those under 18 have every bit as much of a facility to use computers in an unwelcome way as anyone over 18. They know a heck of a lot more about it than I would do; not that I would want to learn how to misuse information technology—I leave that to the Government and their plans for ID cards. On that note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 39, as amended, agreed to.
	Clause 40 [Unauthorised acts with intent to impair operation of computer, etc]:

Lord Geddes: Before calling Amendment No. 173A, I must advise the Committee that if it or Amendment No. 174 is agreed to, I cannot call Amendment No. 175, due to pre-emption.

Lord Bassam of Brighton: moved AmendmentNo. 173A:
	Page 32, line 25, leave out from beginning to end of line 2 on page 33 and insert-
	"3 UNAUTHORISED ACTS WITH INTENT TO IMPAIR, OR WITH RECKLESSNESS AS TO IMPAIRING, OPERATION OF COMPUTER, ETC.
	(1) A person is guilty of an offence if-
	(a) he does any unauthorised act in relation to a computer; (b) at the time when he does the act he knows that it is unauthorised; and (c) either subsection (2) or subsection (3) below applies.
	(2) This subsection applies if the person intends by doing the act-
	(a) to impair the operation of any computer; (b) to prevent or hinder access to any program or data held in any computer; (c) to impair the operation of any such program or the reliability of any such data; or (d) to enable any of the things mentioned in paragraphs (a) to (c) above to be done.
	(3) This subsection applies if the person is reckless as to whether the act will do any of the things mentioned in paragraphs (a) to (d) of subsection (2) above.
	(4) The intention referred to in subsection (2) above, or the recklessness referred to in subsection (3) above, need not relate to-
	(a) any particular computer; (b) any particular program or data; or (c) a program or data of any particular kind."
	On Question, amendment agreed to.
	[Amendments Nos. 174 and 175 not moved.]

Lord Geddes: Amendment No. 176 is a joint amendment.

Lord Bassam of Brighton: My understanding is that our amendments cover the same ground, and as I advised the Committee, we had a suspicion that the amendment proposed by the noble Earl, Lord Northesk, was technically deficient. We would prefer our amendment to his, and I thought that the noble Earl was going to withdraw his.

The Earl of Northesk: The noble Lord, Lord Bassam, has failed to perceive that we are on Amendment No. 176, which is in my name and the Minister's. If he does not want me to move it, I am quite content not to.

Lord Bassam of Brighton: The embarrassment is mine, and I apologise fulsomely to the Committee and to the noble Earl. I do have an excuse, but it would not be worthy of your Lordships' Committee.

The Earl of Northesk: moved Amendment No. 176:
	Page 33, line 6, at end insert-
	"( ) a reference to impairing, preventing or hindering something includes a reference to doing so temporarily"
	On Question, amendment agreed to.
	[Amendment No. 177 not moved.]
	Clause 40, as amended, agreed to.
	Clause 41 [Making, supplying or obtaining articles for use in computer misuse offences ]:

Lord Geddes: Before calling Amendment No. 178, I must advise the Committee that if it is agreed to, I will not be able to call Amendment No. 178ZA, due to pre-emption.

The Earl of Northesk: moved Amendment No. 178:
	Page 33, leave out line 24.

The Earl of Northesk: This subsection was introduced as a government amendment in Committee in another place. Moreover, although some concerns were raised at that time, I acknowledge that there was consensus across the political divide that it should be inserted. In that sense, I draw no comfort whatever from the possibility of being a minority in objecting vehemently to the provision. It is profoundly flawed and coulddo untold damage to the IT community in the UK and conceivably even that beyond our shores. I shallendeavour to explain why.
	Before so doing, as with the previous amendments on DoS attacks, I willingly, although again guardedly, endorse and support the Government's intention with the clause as a whole. We all know that, whatever its form, online hacking of IT systems with criminal or malicious intent is a modern scourge. Manifestly, therefore, due provision should be made to proscribe making, adapting, supplying or offering to supply so-called "hacker tools". I therefore find paragraph (a) eminently sensible and desirable. That said, I am fiercely of the opinion that the test that someone is guilty of an offence under the clause if he merely believes,
	"that it is likely to be...used...in the commission of an offence"
	is unnecessarily and dangerously broad, the more so because it is not in any way constrained by the expressions of intent contained in paragraph (a).
	As the Committee will be aware, the use and effectiveness of online activity is highly dependent on the work of anti-virus and IT security companies. Of necessity, they employ a variety of so-called "hacking tools", such as Nmap, which is used to probe for insecure machines online to see whether they respond, or the scripting language Perl, simply to test IT systems for vulnerabilities that could be exploited by those with criminal or malicious intent. In so doing, they can address discovered weaknesses, hopefully, before hackers can take advantage of them. Indeed, the patches and updates issued by the likes of Microsoft—of which I am sure Members of the Committee are only too aware—are a culmination of this process.
	Here, it is not a case of whether system administrators believe that such tools are "likely" to be used in the commission of an offence; they know full well that they will be—and, indeed, already are. Accordingly, in any interpretation of the paragraph, they lay themselves open to possible prosecution simply by doing their job. As an IT acquaintance has pointed out to me, this is akin to legislating to make use of a crowbar illegal on the basis that an individual would believe that it was "likely" to be used in the commission of burglaries.
	I do not doubt that that is not the Government's intent; nevertheless, it is the implication of the drafting. I know of a number of IT professionals, some of whom are among the best in the country at what they do, who are sufficiently worried by the implications of the clause that they are actively considering abandoning their work in IT security or moving overseas. That would be disastrous, not only for our reputation for IT but economically.
	Consider, too, forensic hacking. Of necessity, law enforcement agencies use hacking tools to investigate crime; for example, to gain access to encrypted data. Again, it is not a case of "belief" that such tools could be used by a hacker, it is absolute certainty. Do we, therefore, conclude that an IT security company supplying hacking software to the police should be deemed to be committing an offence? Or, perhaps, the Government imagine that an individual constable hacking into encrypted data on a criminal's computer could fall foul of paragraph (b). Patently, such situations would be absurd.
	I wonder, too, whether the Government have thought through this matter in the context of higher education. As the Committee will be aware, the syllabuses of many undergraduate computing degrees include hacking. In fact, in response to demand from the IT sector, the University of Abertay in Dundee has recently announced its intention to run, from the start of the next academic year in October, a BSc (Hons) undergraduate course in ethical hacking and countermeasures. But what would be the status of such educational opportunities if paragraph (b) were enacted? On the face of it they would be illegal, because students and professors would know, not merely believe, that the subject matter of their courses is "likely" to be used in the commission of an offence. Again, this would be perverse.
	I am of course aware of the Home Office's view that the key to the provision is how the courts might interpret "likely". Indeed, it has circulated a letterto interested parties which makes this observation. It states that it,
	"boils down to the court deciding whether it is more likely than not each individual instance of the article will be used to commit an offence, i.e. the offence is only committed if it will be used criminally more than legally".
	I apologise, but I deem that to be just gobbledygook. What happens where a tool is determined as being used legally and criminally in equal measure? How, in fact, would a court measure accurately such percentages of usage? Quite apart from that, and as with my criticisms in the previous grouping, is it not incumbent upon us as legislators, and indeed the Government, to imbue the law with as much clarity as possible?
	I could say much more, but I will not weary the Committee any further. I merely observe in conclusion that, in contrast to their efforts on DoS attacks, with paragraph (b) the Government are attempting major surgery where a sticking plaster will do. They are using a sledgehammer to crack a nut, the more so because paragraph (a) of itself bears down adequately, if not entirely, upon the activity that the Government wish to and should proscribe. In so far as that suggests incoherence in their approach to legislating on IT, I repeat my conviction that a wholesale re-write of the CMA is needed. In the mean time, I beg to move.

The Earl of Erroll: I shall also speak to Amendment No. 178ZA in this group. To be honest, Amendment No. 178, deleting the paragraph altogether, may be the best course of action, because the provision causes serious problems. I have had long conversations about this with several people from companies that will be directly affected by it. I thought that the Home Office might not be willing to remove the paragraph, so I tabled my slightly less extreme amendment; nevertheless, it may have its own problems, and it may be wiser to delete the paragraph altogether. This small but important amendment will have a serious impact on quite a lot of companies that currently write software that is perfectly legal and is extremely useful because it allows computers to be managed remotely. To give you a feel of the technology, the Parliamentary ICT helpdesk uses such software. If you have a problem, you can allow one of the helpdesk people to take control of your computer or to watch what you are doing on it and give you helpful advice. That would be a typical application where someone is remotely accessing your computer using the same tools as hackers would use.
	People developing websites will have software that can download and install itself to monitor the mouse's movements around the screen to see how people use the websites, where they hover and what they click on. These things, which sit in the background, are used by academics and developers to make websites more usable. We all know of websites—possibly even the parliamentary website—which could do with a little research in this direction. Such tools will almost certainly be made illegal by the proposal because they are exactly the sort of tools that hackers can use. Even if such tools were not principally designed for a hacker in the first place, hackers could easily modify bits of them, or use them, and it is extremely likely that they will do so; it is highly unlikely that they would not do so.
	It is very likely that hackers will use these things. It is highly improbable that they will not. Unless my definition of "likely" is very different from that of the lawyers at the Home Office, I would prefer the dictionary definitions that I find to the ones that they may be trying to use.
	The real trouble is how the courts will interpretthe word "likely". In our courts, some very clever barristers will use very clever verbal gymnastics to twist the meaning of "likely" to suit their case. The case may be brought not against a large company that can afford very expensive barristers to defend it but against a small, one-man band, who may have written some software. For some reason someone who may be trying to gain commercial advantage reports him, or has a contact that can do something, and he may be unable to defend himself against a clever barrister in court.
	I do not know whether "likely" implies that more people will use such tools for legal purposes than for illegal purposes such as hacking. How dothe courts establish that? As a result, after some discussion with people, I suggest "primarily", which would be better. I am open to other ideas, such as that of our assiduous and articulate assistant to the Convenor of the Cross Benches, Julian Dee, who suggests "largely intended for". A journalist on the train with whom I was discussing it this morning suggested "principally". All these words have much to recommend them instead of "likely".
	The important thing is that they should convey the intention of Parliament better than "likely" in the mind of the lawyers. I support this approach because of the possibility that this might persuade the lawyers in the Minister's department to change their minds, but I do not know whether this is likely or unlikely.
	It has been suggested to me in discussions with the people behind "likely"—the Home Office—that the courts can use Pepper v Hart to look at the Minister's response to these amendments to find out the intention behind Parliament's inclusion of this word. The trouble is that the courts have to decide that it is ambiguous and I am not sure that it is at all ambiguous. I believe that it is highly likely that any of these tools will be used by hackers unambiguously.
	Another approach would be to use a very ambiguous word. I will leave it to noble Lords' imagination how you might make this phrase so ambiguous that the courts had to read the Minister's statements. That would be an alternative, but is that likely to happen? Anyway, it is a bad way to make law.
	I turn to a matter that I feel strongly about. In Roman law, I believe, one makes laws slightly general and the courts and the state decide how the law is to be interpreted and fill in the blanks later. But under common law—we are a common law country—basically you are allowed to do anything that is not expressly forbidden. Therefore, we define much more closely what is forbidden because it is important to make clear what companies are and are not permitted to do and not leave it to the courts to interpret later.
	I have also spoken to someone who has close ties with the Commission and they do not like this at all either. Should we pass the measure in this form, there may be moves from Europe later in the yearto get it changed. International companies are sufficiently worried about this for lobbying to take place. With that, I look forward to hearing the Minister's reply.

Baroness Harris of Richmond: We agree with this amendment. As I understand it, under paragraph (b) a software developer will need only to intend his software to be used or believe it likely to be used as a hacking tool. I very much welcomed the fact that the noble Earl, Lord Erroll, explained his concerns about "likely"—a point with which we also agree.
	Those in software development are fully aware of the capabilities of software. Many tools traditionally used by hackers are also used by security consultants when checking a system to make it safe from those doing the hacking. The noble Earl, Lord Northesk, put across far more effectively and succinctly than I ever could the import of his amendment.

Lord Bassam of Brighton: I listened with interest to the noble Earls, Lord Northesk and Lord Erroll, as I always do when they speak on these subjects, and I certainly understand the thinking behind their amendments. I also understand that they reflect a concern about how subsection (1)(b) of the new Section 3A offence will be interpreted. The noble Earls explained carefully and very well that the concern rests on how paragraph (b) deals with dual-use tools. Obviously it is not the article that is at issue but how it is likely to be used, and that takes us to the heart of the matter.
	The noble Earl, Lord Northesk, is proposing to remove subsection (1)(b), which provides that an offence is committed if a person does any of the listed acts believing that the article is likely to be used to commit a relevant offence. Removing the paragraph would limit the use of the subsection to instances where the prosecution could prove that the article was intended to be used to commit computer misuse offences. We consider it important that the offence covers those who believe it is likely that the article will be used to commit offences, irrespective of intent. Further, the clause as drafted sets a high test to protect those with legitimate intentions. The supplying offence that we are talking about here is very narrowly drawn, and the high threshold that we require to prove the offence underlines that.
	The noble Earl, Lord Erroll, has proposed something slightly different. I am extremely impressed by his extensive consultation arrangements on the 9.19 am from Surbiton, or wherever his train was from. It seems a novel way of carrying out consultation on computer misuse; nevertheless, it is valuable for the potential thesaurus that it supplies us with.
	We do not believe that his proposed alternative—that of exchanging "likely" with "primarily"—differs significantly from the current draft. Asking whether a person believes that the primary use of an article is to commit offences seems to be the same as asking whether he believes that an article is likely to be used to commit offences. Also, the proposed formulation would not deal adequately with a case where the primary purpose could be said to be legitimate but the article in question was supplied by a person who believed that it would be likely to be used to commit offences. The noble Earl, Lord Erroll, might like to consider that nuance further. The burden on the prosecution of showing that the accused believed that the article was likely to be used in the commission of an offence under Sections 1 or 3 of the Act will not, as I said earlier, be an easy one to discharge.
	It would not be sufficient for the producer of the article to show that it had been used for such a purpose on some occasions because that does not show a belief that the article in question will be so used. On the contrary, the producer will be taken to believe that the article would be used honestly, as it is in the majority of cases. The prosecution may need to prove that the supplier knew something about the person to whom he supplied the article on which to base a belief of dishonest use. Obviously, that will not be an easy task.
	We recognise the concerns of legitimate product manufacturers, the IT security industry and the research community about the need for clarity on how these provisions will apply to them. We have carefully considered the standard to be applied and we are satisfied that we have struck the right balancebetween protecting those who develop or supply tools for legitimate use and criminalising those who deliberately or recklessly develop or supply them for criminal use. I hope that what I have said provides that clarity. I express my gratitude again to both noble Earls for providing the Government with the opportunity to clarify our intentions. I invite them to withdraw their separate but distinctive amendments.

The Earl of Northesk: I thank the Minister for that reply and I thank the noble Earl, Lord Erroll, and the noble Baroness, Lady Harris, for their contributions and their support for the amendments. Regrettably, I am none the wiser. The Minister has not clarified the issue for me one iota. My understanding is that at the heart of this lies the legal definition of "likely". It is a sad fact that vast swathes of the IT sector remain, to this day, confused about how "likely" will be interpreted by the courts. They simply will not take the risk of falling foul of this provision. I do not mind whether the noble Lord wishes to dismiss that, but that happens to be true.
	I have very serious difficulties about how the courts will interpret the Government's intent vis-à-vis "likely". How will the courts measure it, and against which yardstick will they measure it? There is absolutely nothing in the Bill to suggest that they can so do. I will read what the Minister has said extremely carefully, but, on first hearing, it does not clarify matters at all. With certainty, I shall return to this matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Erroll: had given notice of his intention to move Amendment No. 178ZA:
	Page 33, line 24, leave out "likely" and insert "primarily"

The Earl of Erroll: I have listened to the Minister with great interest. He has clarified for me a confusing point about the production and the supply of these tools. One is trying to criminalise people who advertise on the internet saying, "Great hacker tool available, derived from such and such, best thing ever, why don't you buy it for X?". I have no problem with criminalising the sale or the supply of a tool because one knows that that is likely to be used by hackers. Separating out the development and, therefore, the supply of legally developed tools to educational establishments or authorised computer users might well solve part of the problem.
	The second point that occurred to me while listening to the noble Earl, Lord Northesk, is that we need a definition for "likely". Perhaps we should put in an entire legal definition of what we think "likely" is likely to mean when it gets to the courts. That would be another way around the matter. With those caveats and knowing that we shall definitely returnto this subject on Report, I shall not move my amendment.

[Amendment No. 178ZA not moved.]
	Clause 41 agreed to.
	Clause 42 [Transitional and saving provision]:

Baroness Scotland of Asthal: moved Amendments Nos. 178A to 178C:
	Page 33, line 39, at end insert-
	"( ) The amendments made by subsection (2) of section 39 apply only where every act or other event proof of which is required for conviction of an offence under section 1 of the 1990 Act takes place after that subsection comes into force."
	Page 33, line 41, at beginning insert "subsection (3) of"
	Page 33, line 43, leave out "section" and insert "subsection"
	On Question, amendments agreed to.
	Clause 42, as amended, agreed to.

Baroness Anelay of St Johns: moved Amendment No. 179:
	After Clause 42, insert the following new clause-
	"ENCRYPTED DATA AND INDECENT PHOTOGRAPHS OF A CHILD
	(1) The Regulation of Investigatory Powers Act 2000 (c. 23) is amended as follows.
	(2) In section 53 (failure to comply with a notice)-
	(a) after paragraph (a) of subsection (5A) there is inserted-
	(aa) in a case to which subsection (6) applies, seven years;";
	(b) after subsection (5B) there is inserted- "(6) This subsection applies where- (a) a person has been previously convicted of an offence contrary to section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988; (b) the apparatus or data storage device containingthe protected information contains an indecent photograph or pseudo-photograph of a child; (c) the apparatus or data storage device containing the protected information has come into the possession of any person together with other apparatus or a data storage device which contains an indecent photograph or pseudo-photograph of a child; or (d) the court is satisfied that the protected information is likely to contain an indecent photograph or pseudo-photograph of a child. (7) This subsection will not apply where the person to whom the notice is given can show that the protected information does not contain an indecent photograph or pseudo-photograph of a child. (8) "Indecent photograph or pseudo-photograph of a child" shall have the same meaning as in the Protection of Children Act 1978."
	(3) After paragraph 36 of Schedule 3 to the Sexual Offences Act 2003 (c. 42) there is inserted-
	"36A An offence under section 53 of the Regulation of Investigatory Powers Act 2000 if subsection (6) of that section applies.""

Baroness Anelay of St Johns: I shall speak also to Amendments Nos. 180 and 196, which also stand in my name. The two new clauses would strengthen the law dealing with sex offenders, especially those who offend against children. The issues covered by the amendments were also debated during the passageof the Sexual Offences Act 2003. At that time, the Government asked that they should have the opportunity to consider the proposals further. We are pleased that some progress has been made, but it has not been enough. It is in the vein of probing how much further we may be able to go and when that the amendments have been tabled.
	In another place, the Government accepted another amendment that inserts a new clause giving the police extra powers to enter and examine the relevant offenders' home address. The new clause, although rejected by the Government for this Bill, was, with the agreement of the whole of thisHouse, inserted in Committee on the ViolentCrime Reduction Bill in May. Unfortunately, the Government did not give such a positive and speedy response to the amendments before us today and I hope that we can now make more progress with them.
	Amendment No. 196 simply amends the Long Title so that the matter of child pornography would come within the scope of the Bill. As, later, we shall come to government amendments that would amend the Long Title, I hope that amending the Long Title is no longer an anathema to the Government.
	Amendment No. 179 deals with encrypted data. It is well known that paedophiles collect pornographic images of children that most certainly constitute child abuse. Some of the images are real; some are digitally manufactured. One must at all times remember that every photograph of a real event is a record of a real act of abusing a child. Many of the images are in the form of videos or DVDs or on computers. Increasingly, they are kept on remote storage. Some computers that the police collect have no hard drives at all. They are driven or initiated by a disk and the information is stored remotely. Increasingly, the information is hidden by encryption. We used to have simple encryption, but we have now moved to 128 bit and 256 bit encryption. I understand that the software is freely available on the internet and is relatively easy to use. Essentially, it is unbreakable.
	I am advised that matters are likely to become worse from the point of view of breaking security systems when Vista, the replacement for the Windows operating system, is due out during the course of next year. Once that system is up and running, the security is such that when the computer is turned off, it automatically encrypts all the information on it so that when the police collect the computer and turn it on, they cannot break through the encryption. Some information can be destroyed, preventing access by the police.
	Clearly, the police need access. They need to seek evidence against individuals and, because offenders sometimes work in groups, they need to find evidence against the wider group as well. It is vital for the police to be able to identify the children involved. That is crucial not only in detecting the abusers but making it possible to offer some hope that the children may be rehabilitated and suffer as little long-term damage as possible.
	The new clause deals with encrypted data found on computers and storage in cases where the police believe that the encrypted data contains abusive images of children. It does not create any new offence or scheme, but amends the sentencing regime under Section 53 of the Regulation of Investigatory Powers Act 2000. Part 3 requires a person to comply with a notice issued by the police to hand over the encryption key for protected data. The penalty for a breach is two years. That seems low, given that the alternative penalty, if the information were turned over, would often be five years or more. Frequently, offenders also have to go on to the sex offenders list.
	Accordingly, it is unlikely that a defender who has indecent and abusive photographs of children on his or her computer would comply with the notice. We need to step up the penalty to achieve that compliance, so I suggest that such offenders should be liable for up to 10 years' imprisonment, which is the penalty for contravening Section 1 of the Protection of Children Act 1978. I have no firm view on that; the amendment was tabled to probe the Government's intentions.
	The proposed new clause would simply raise the sentence if a court was satisfied that it was more than likely—we return to "likely", to which the noble Earl, Lord Erroll, referred—that most of the encrypted data consisted of indecent photographs of children. We suggest the use of the civil burden of proof because the offence would be not the possession of photographs of children, which would be punished separately, but the failure to hand over the encryption key. The higher sentence would apply only when one of two thresholds was passed: the computer had non-encrypted indecent photos of a child or children on it; or the person had previously been convicted of an offence contrary to Section 1 of the Protection of Children Act 1978 or Section 160 of the Criminal Justice Act 1988.
	Amendment No. 180 would insert a new clause relating to offences requiring notification. Sections 48 to 50 of the Sexual Offences Act 2003, which make provision for the offences of recruiting or controlling a child involved in pornography or prostitution, are not prescribed for the purposes of notification requirements under Part 2 of that Act. I confess that my noble friends and I, and my Front-Bench colleagues in another place, quite simply missed that point during the passage of the Act. Those sections are not being used by the police and prosecutors because they do not have the notification that applies to most of, if not all, the other provisions relating to the abuse of children.
	I hope the Minister will agree that there is no valid reason why people convicted of such an offence should not be required to notify the police of their details, because they are directly involved in the abuse and exploitation of children and need monitoring and risk assessment. Time was somewhat limited when these matters were debated on Report in another place, but the Government made some encouraging noises, which were welcome, about consulting on them. I would be grateful if the Minister would say what the Government's current thinking is on the proposals that I have outlined, whether any consultation has commenced on either or both of the proposals, what the time scale is, who is being consulted, and whether they see any particular difficulty with any part of the proposed new clauses, because we would certainly be happy to work with the Government to improve the drafting of them until they become acceptable, I hope, in the near future. I beg to move.

Lord Hylton: I welcome the intention behind the amendments because they would tighten up the law, which would benefit the protection of children not only in this country but overseas; for example, in the Philippines. It is quite certain that children have been abused and exploited for the purpose of making pornographic films, videos, disks and other computer material, and anything that can be done to reduce that will surely be to the good.

Lord Bassam of Brighton: It is the case that those developing this area of criminal law have had to work hard in the past decade to keep pace with developments in technology and our emerging and developing understanding of the activities of those who are involved in paedophile activity. I am very grateful to the noble Baroness for tabling the amendments, as they enable the Government to set out how we intend to approach these matters. I am also grateful to the noble Lord, Lord Hylton, for his intervention, because he touches on a very important point; this is a global phenomenon, and anything that we can do in this country to tackle these issues, which will have a beneficial effect elsewhere, should be done with enthusiasm and an international spirit.
	Amendment No. 179 is designed to increase the maximum penalty for the offence, in Section 53 of the Regulation of Investigatory Powers Act 2000, of failing to comply with the requirement to disclose protected information or the key to it. We had long arguments at the time about those offences. The increase in the maximum penalty would apply in the circumstance set out in new subsection (6) of Section 53 of RIPA, including where the offender has a previous conviction for possession of an indecent image of a child.
	The use of information technology by terrorists and criminals to facilitate and conceal evidence of their unlawful conduct in order to evade detectionor prosecution is increasing. Consequently, the Government have concluded that it is now timely to implement the provisions of Part 3 of the Regulation of Investigatory Powers Act 2000, including Section 53, which are not presently in force. The threat to public safety posed by terrorist use of encryption technologies was recognised by the House in Section 15 of the Terrorism Act 2006, which increased the maximum penalty for the Section 53 offence to five years in a national security case. On 7 June, the Government published for consultation a draft statutory code of practice for the investigation of protected electronic data and the exercise of powersin Part 3 of RIPA. This consultation also invites comments on proposals to amend Section 53 of the Act in line with this new clause.
	The Government remain very sympathetic to what the noble Baroness seeks to achieve by way of her amendment. However, first, we want to allow further opportunity for public consideration and comment on the proposals, and to consider what legislative changes to bring before the House in the light of current consultation. I am sure that the noble Baroness will feel able to assist us in that by withdrawing her amendment.
	I now turn to Amendment No. 180. Schedule 3 to the Sexual Offences Act 2003 lists the offences for which a conviction, finding or caution will, subject to certain sentencing thresholds being met, result in the offender being made subject to the notification requirements of Part 2 of the 2003 Act. These requirements are colloquially known as the sex offenders register. When Schedule 3 was drawn up, we decided that the offences under Sections 48 to 50 of the 2003 Act—"Causing or inciting child prostitution or pornography", "Controlling a child prostitute or a child involved in pornography", and "Arranging or facilitating child prostitution or pornography"—should not be included. That decision was taken because we believed that these offences, while undoubtedly abhorrent, were not strictly sexual offences, unlike, say, rape, but could be motivated by factors such as simple greed.
	We did however include the offences in Schedule 5 to the 2003 Act. By doing so, we could ensure that if an offender demonstrates that they pose a risk of serious sexual harm, courts can make a sexual offences prevention order either when dealing with such an offence or on subsequent application from the police. Being made subject to such an order leads to the offender going on the sex offenders register as well as being subject to prohibitions imposed by the order. However, while it may be true that these offences need not necessarily be strictly sexual in their nature, their perpetrators demonstrate at the very least a callous disregard of the sexual well-being of children and may pose a threat, and so may require the monitoring that being made subject to the register will bring.
	Officials already intend reviewing the content of Schedules 3 and 5, which will take place over the summer. I assure the noble Baroness that her suggestions, as set out in her amendment, will receive sympathetic consideration during that review, including her comments about using the civil measure of guilt. As part of our review, we will be more than happy to meet and discuss with the noble Baroness her concerns and to listen to her other ideas about these offences. Any changes to Schedules 3 and 5 will not require primary legislation. They can be made by affirmative order, which means that Parliament will have the opportunity to debate the proposal. I am sure that the noble Baroness will appreciate that, rather than making piecemeal changes, we take the view that we should await the results of the review, which we will conduct in an entirely open way with the organisations, charities, voluntary sector bodies and so on with which we usually consult in these matters. We hope to make all the necessary changes through an order which will be laid in the autumn.
	Again, I am grateful to the noble Baroness for her concern and care in this matter. If we can proceed in this way, I think we can achieve jointly our objectives which I am sure are not totally dissimilar.

Baroness Anelay of St Johns: I am grateful to the Minister for that sympathetic reply and I think that progress is being made here. I am also grateful to the noble Lord, Lord Hylton, for his support. He is absolutely right to point out that, when we talk about offences in these terms, we are also trying to protect children overseas who may be abused through the use of internet pornography. It would not be right to go into more detail on the Minister's response except to say that I welcome his proposal for a meeting. I put it on the record that I would be grateful if the Home Office invited my honourable friend in another place, Sir Paul Beresford, to take part. I know that the Home Office has involved him in previous discussions and that he would value any continued participation.

Lord Bassam of Brighton: I am sure that that can be arranged.

Baroness Anelay of St Johns: I thank the Minister and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 180 not moved.]
	[Amendment No. 181 had been withdrawn from the Marshalled List.]
	Clause 43 agreed to.

Baroness Linklater of Butterstone: had given notice of her intention to move Amendment No. 182:
	After Clause 43, insert the following new clause-
	"Penal custody for children
	PENAL CUSTODY FOR CHILDREN
	(1) No child shall be detained in a young offender institution or a secure training centre.
	(2) "Child" means a person under the age of eighteen."

Baroness Linklater of Butterstone: I shall not move this amendment for the time being. However, we attach great importance to this subject and we will return to it on Report.

[Amendment No. 182 not moved.]
	Schedule 12 [Schedule to be inserted into the Protection of Children Act 1978]:
	[Amendment No. 183 not moved.]
	Schedule 12 agreed to.
	Clause 44 agreed to.
	Schedule 13 [Schedule to be inserted into the Protection of Children (Northern Ireland) Order 1978]:
	[Amendment No. 184 not moved.]
	Clause 45 [Immigration and asylum enforcement functions: complaints and misconduct]:
	[Amendment No. 185 not moved.]

Baroness Anelay of St Johns: moved Amendment No. 185A:
	Page 36, line 12, at end insert-
	"( ) Nothing in this section shall authorise the disclosure of documents or information subject to legal privilege."

Baroness Anelay of St Johns: I rise briefly to movethis amendment only because it was originally not grouped with Amendment No. 185 and because I think, without being rude to the Law Society of Scotland, that it may be disposed of by the Government with some assurances. Clause 45 provides that the reference to "enforcement functions" includes reference to powers of entry, powers to search persons or property, powers to seize or detain property, powers of arrest and detention, powers of examination and powers in connection with the removal of persons from the UK. This amendment would insert a new subsection to ensure that the documents and information subject to legal privilege cannot be recovered by virtue of a search warrant granted under subsection (2).
	This probing amendment follows concerns specifically raised by the Scottish Law Society, which states:
	"Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law society is eager to protect the relationship between a solicitor and his or her client and has made provision for the doctrine of legal professional privilege".
	The society goes on to argue:
	"To preserve this relationship and ensure that such information and communications are privileged, provision should be made on the face of the Bill to the effect that a search warrant or powers to seize or detain property granted under clause 45 will not extend to the disclosure of information subject to legal privilege".
	I hope that the Minister can clarify the situation under this clause with regard to information subject to legal privilege and offer some assurance in response. I beg to move.

Lord Dholakia: I support the amendment for the reasons identified by the noble Baroness, Lady Anelay. It would be helpful if the Minister could give us an explanation about documents that have legal privilege.

Lord Bassam of Brighton: I will go carefully over my speaking note. I can see that the amendment has three possible consequences, which I shall go through because I want to test them back to the noble Baroness. She will then, no doubt, tell me whether I have addressed the issues and satisfied the intent of the amendment and the probing nature of her comments.
	First, if the amendment is intended to safeguard members of the public from the seizure of legally privileged documents belonging to them by immigration officers or officials of the Secretary of State exercising immigration and asylum enforcement functions, we argue that sufficient safeguards already exist in the current legislation. In this clause, enforcement functions exercised by immigration officers and certain other officials are defined as including the types of powers already exercised by those officers under the existing provisions of the immigration Acts. These include, for example, powers of arrest or powers of search and seizure. Thisis to enable the Independent Police Complaints Commission under future regulations to have oversight of these types of powers where they are exercised by immigration officers or certain other officials in the enforcement and removals context.
	Clause 45 does not create new powers for immigration officers or other immigration officials. Where powers for such officers and officials to search and retain documents exist in the current law, provision is already made in the legislation for the protection of legally privileged documents. For example, Section 28E(6) of the Immigration Act 1971 qualifies the power that an immigration officer has to enter and search premises following the arrest of a suspect to ensure that legally privileged items cannot be seized. Policy instructions to immigration officers also make it clear that legally privileged material should not be seized.
	If the amendment is concerned that the Independent Police Complaints Commission under future regulations will obtain legally privileged information belonging to a private individual, I can again reassure the noble Baroness. If the IPCC obtains such material in the course of one of its investigations, it would be obliged to return it unopened or unread unless the owner of the privilege had waived that privilege. IPCC investigators carrying out investigations have the same powers under the Police Reform Act 2002 as a constable in England and Wales. Therefore, the only warrants that they could seek are those under PACE or terrorism legislation. Legally privileged information will be outside the scope of these warrants, as provided for by Sections 8 and 10 of PACE.
	The position where the Immigration and Nationality Directorate is the holder of the legal privilege will be different, however. Section 17 of the Police Reform Act 2002 currently enables the IPCC to require the disclosure of information, including legally privileged information held by the police, by Her Majesty's Revenue and Customs or by SOCA, under equivalent provisions, where disclosure is required for the carrying out of an IPCC function. The intention of Clause 45 is to ensure independent scrutiny of immigration officers and officials exercising police-like powers within the community under future regulations similar to the scrutiny that is in place for the police. To require different practices for the disclosure of legally privileged information where IND is the holder of the privilege would be anomalous.
	If the third interpretation is the intention of the amendment, the amendment could prevent the disclosure of legally privileged information between the IPCC and the Parliamentary Commissioner for Administration. We take the view that that would be undesirable. The IPCC and the PCA may wish to disclose legally privileged information under the gateway created by Clause 45(5) as part of their functions or for the purposes of a joint investigation under Clause 45(6).
	I trust that I have dealt to the noble Baroness's satisfaction with all the potential interpretations that might arise from the amendment. I hope that I have reassured her that the concerns that were quite properly raised by the Law Society of Scotland—it is very good at this—have been addressed and that she will feel able to withdraw the amendment.

Baroness Anelay of St Johns: After that comprehensive reply, it would be churlish to do other than say that I will make sure that the Law Society of Scotland has a good look at this. I agree with the noble Lord that, with regard to the third interpretation of the potential consequences, it would be wrong to prevent information going to the commissioner. I shall seek the advice of the Law Society of Scotland and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 45 agreed to.
	Clause 46 agreed to.
	[Amendments Nos. 185B to 185R had been retabled as Amendments Nos. 191B to 191R.]

Lord Kingsland: moved Amendment No. 186:
	After Clause 46, insert the following new clause-
	"DESIGNATION OF PART 2 TERRITORIES: OMISSION OF UNITED STATES OF AMERICA
	In the list of territories in paragraph 3(2) of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003(S.I. 2003/3334) "the United States of America" is omitted."

Lord Kingsland: In moving AmendmentNo. 186, I shall speak to the other amendments in the group. I shall speak also to Amendments Nos. 187 to 190 because, although they deal with a distinct matter, in a sense the two groups of amendments run together.
	The issues raised by the amendments deal with two matters. The first is treaty ratification; the second is reciprocity—that is, the fairness of the test contained within the treaty itself. I shall begin by dealing with ratification, although necessarily, as I seek to develop my argument, I shall make some reference to reciprocity.
	Our starting point is the existing international law between ourselves and the United States—the extradition treaty of 1972. That treaty still defines the international law obligations between the two countries. It is, broadly speaking, a treaty which contains tests which are balanced. If the United States wishes to extradite someone from the United Kingdom, it has to meet what is known as a prima facie case to succeed. Equally, when we apply to extradite somebody from the United States, we have to meet the test of probable cause. There is much debate in international law about the extent to which these two categories are balanced; but, broadly speaking, I think it is accepted that they are.
	On 31 March 2003, Mr David Blunkett andMr John Ashcroft, respectively at that time, the Home Secretary of the United Kingdom and the Attorney General of the United States, signed a new extradition treaty. I say in passing that no prior notice was given to Parliament of the terms of this treaty before it was signed. Indeed, as far as I am able to determine, no one, outside Government, appears to have got wind of what was going on.
	The whole question of parliamentary oversight of treaty negotiations was raised tantalisingly by the noble Lord, Lord Lester of Herne Hill, in his debate on prerogative powers earlier in the year. Although I shall not develop the arguments now, I believe that the manner in which that treaty was concluded deserves the closest attention of your Lordships' House.
	From our point of view, the most important thing about this treaty is that it changed the reciprocity test. Although we have to continue to show probable cause to the United States Government when seeking somebody's extradition from the United States, the prima facie case no longer applies. That point was very fairly dealt with by the noble Baroness, Lady Scotland, during the debate on the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. She said that,
	"when we make extradition requests to the United States we shall need to submit sufficient evidence to establish 'probable cause'. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that. The fact is that under the terms of its constitution the United States of America cannot set its evidential standard any lower than 'probable cause'".—[Official Report, 16/12/03; col. 1063.]
	The treaty is what today's debate is fundamentally about. The treaty needs to be ratified by both parties to give it binding effect in international law. Until it is ratified by both parties, the 1972 treaty in international law prevails. We are still waiting for the 2003 treaty to be ratified by the United States.
	Meanwhile, in November 2003, the Extradition Bill became law. I need to refer to two provisions of the Bill, though telegraphically. The relevant part of the Bill is Part 2; Part 1 deals with arrest warrants. Section 84 of Part 2 provides for extradition to territories other than those covered by the European arrest warrant. In particular, Section 84(1) states that, faced with an extradition request, a judge must decide whether there is sufficient evidence to make a case requiring an answer from the subject of the request. That is to say, Section 84(1) establishes and repeats the prima facie rule. However, under Section 84(7), the need for prima facie evidence is excluded if the Secretary of State makes a designation so saying.
	That further designation was made under the Extradition Act by an order which came before your Lordships' House in December 2003. Under that order, the United States was one of a number of paragraph 2 countries, most of which were signatories to the European Convention on Extradition. The act of designation by that order—its approval by both Houses of Parliament—meant that from 1 January 2004, we were required to meet our side of the bargain struck by Mr Blunkett in that treaty even though there was no obligation on the United States to meet its.
	That point was freely admitted by the noble Baroness, Lady Scotland, in the December debate, but she was optimistic. She said:
	"We anticipate that the treaty will be put before the Senate formally early in the new year"—
	the new year of 2004—
	"and approved shortly thereafter. We do not anticipate that we shall encounter any difficulties in that regard".—[Official Report, 16/12/03; col. 1071.]
	Yet, here we are, two and a half years later. The United States has done nothing about ratification, in breach of the rules of international comity. But we have been acting as though the United States had ratified that treaty, to the astonishment of a number of Americans, some of whom gave evidence to the relevant Senate committee in November last year. We have been acting on the basis of a treaty that, as yet, forms no part of international law. That explains the first of our amendments—Amendment No. 186—which would simply remove the United States from the designation of Part 2 territories until ratification takes place.
	We believe that the time has come for your Lordships' House to act. The United States Senate is, after all, another upper House in an English speaking world; and we hope that a firm signal from your Lordships' House would be taken seriously by the United States Senate.
	There are two other amendments in this group—Amendments Nos. 191 and 191A. We intend to withdraw Amendment No. 191 in favour of Amendment No. 191A tabled by the noble Lord, Lord Goodhart. We are able to support that amendment although we are not totally content with it as it stands. We do so to give the other place the chance to consider the underlying operation of the treaty, and we do so with one very significant reservation—that when it gets to the other place, it must be revised to remove its application to acts of terrorism so as to ensure that we can maintain quick and efficient extradition of terrorists, which is a principle that I know the whole of your Lordships' House supports.
	I move on to the question of reciprocity. I shall make no observations about the substance of the case known colloquially, in all the newspapers, as the case of the NatWest Three. However, it is fair to say that their case has thrown up a number of weaknesses in the treaty negotiated by Mr Blunkett as well as in the Extradition Act 2003. I shall pay some attention to both of them.
	First, there has been no attempt whatever by the Government to incorporate the forum rules contained in the 1957 European Convention on Terrorism to which we are parties, although the United States is not. Article 7.1 of the convention is reflected, in essence, in our Amendment No. 189, which says:
	"If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interests of justice that the person should be tried in the category 1 territory... In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested".
	That amendment in essence reflects terms to which we agreed in the 1957 treaty and the Council framework decision of 13 June 2004 on the European arrest warrant. It hands over to a judge the power to decide not whether there is a prima facie case but whether the nature of the offence, in all the circumstances, ought to be tried in the United Kingdom rather than the United States. In reaching that decision, the judge would take into account a number of factors—such as territoriality, the availability of witnesses, the nature of the evidence and the availability and admissibility of that evidence. This approach has been well established in Europe for many decades; and we see no reason why they should not apply to the extradition treaty and the Act applying to it between the United States and ourselves.
	One interesting thing about the extradition treaty between Ireland and the United States is that it contains precisely that qualification. Like us, the Irish are no longer demanding prima facie evidence, even though the United States continues to demand probable cause. But the Irish Government have insisted that the courts apply a forum test. That is totally absent from the Extradition Act 2003, and we believe that it should be included.
	The second matter to which I draw your Lordships' attention is the question of the relationship between the Extradition Act 2003 and the Human Rights Act 1998. Throughout the debates that we had on the Extradition Bill, the Minister was at pains to reassure us that the terms of the Human Rights Act would continue to apply to matters within the jurisdiction of the Extradition Act. That fact is in the Act in Section 87(1), where it says that judges considering these matters are expressly required to take into account the Human Rights Act when construing the Extradition Act.
	There has recently been a series of cases in connection with the NatWest Three. They have gone as far as the Court of Appeal; it considered the relationship between the Extradition Act and the Human Rights Act and reached the conclusion that, in every case, the international treaty as reflected by the Extradition Act always trumped the Human Rights Act. On a true construction of the Act in relation to the Human Rights Act, I am sure that that judgment is sound; and nothing that I am about to say should in any way be read as a criticism of the Court of Appeal. However, if that is now the law, and the Human Rights Act is overridden in that total and complete way by the Extradition Act, then the Government should look at that relationship again.
	In the deportation of non-British nationals cases, the courts spend years trawling over factual issues about what will happen to a non-British national when he or she is returned to the country to which he or she is to be deported. But it appears that in the context of the extradition treaty, the balance between what the Human Rights Act requires and the Extradition Act itself is different from normal deportation cases. At least, that is what I have concluded from the judgment of the Court of Appeal. If that is so, in my submission the Government should look at this balance again. That is the second reason why we have raised further amendments and will support the amendment tabled by the noble Lord, Lord Goodhart.
	I do not need to say anything more, except this: I have watched, in the course of the past five years of the Government's time in office, an astonishing erosion of the rights of the criminally accused in a whole range of areas, which I am not going to repeat. The Minister has heard me saying this before; she knows what I am saying. I regard the manner in which a country treats its criminally accused as absolutely central to the way in which it is defined as an open, free and democratic society following the rule of law. That has been said by many great men; it is not an original observation. Quite frankly, the evidence that the Committee has before it today is that the circumstances surrounding the ratification of the treaty, and the degree of reciprocity within it, raises further serious question marks about whether we meet that free society test. I beg to move.

Lord Lloyd of Berwick: If I can, I wish to speak before the Motion is moved. This is simply for clarification, because I do not understand the full extent of the argument. Is the noble Lord saying that the United States should be removed altogether from the Part 2 categories, or only from the designation under Section 84(7)? That is a critical point.

Lord Kingsland: From the designation. Amendment No. 186 reverses the effect of the order of 16 December 2003. That is all we seek. Amendments Nos. 191 and 191A define the tests the United States should meet before a further order redesignating it.

Lord Lloyd of Berwick: I am going to press the noble Lord, because this is an important point. We understand that there is designation of the Part 2 categories, and the noble Lord is saying that the United States is included among them. It is also included in the extra designation in Section 84(7). Is he arguing that the United States should be removed altogether from Part 2 categories?

Lord Kingsland: No.

Lord Lloyd of Berwick: Only from Section 84(7)? Thank you. I am very grateful.

Lord Goodhart: We on these Benches have objected to the extradition arrangements with the USA ever since the text of the new treaty was published shortly after it had been signed on 31 March 2003. I have put my name to Amendment No. 186, which has just been spoken to by the noble Lord, Lord Kingsland, as well as to Amendment No. 191A, which stands in my name alone.
	The purpose of these amendments is to prevent serious injustice for people who now face extradition to the USA or may do so in the future. That injustice arises from the absence of any need for the American Government to provide any evidence of possible guilt in support of the request; the lack of reciprocity, since requests for extradition from the United States have to be supported by evidence; and the aggressive American pursuit of extradition in cases that ought to be tried, if at all, in the United Kingdom.
	I shall start by removing a smokescreen that has been put up by the Government. The smokescreen is the statement that there is no lack of reciprocity and that the tests for extradition in opposite directions are in fact equal. That is a view the Minister herself accepted in December 2003, when, in the course of the debate on the order, she made the statement that has been read to your Lordships by the noble Lord, Lord Kingsland. That is quite different from the Minister's answer to the question from the noble Lord, Lord Anderson, in your Lordships' House last Tuesday, when she said there was no such difference. That line was repeated by the Prime Minister in his reply to a question from my right honourable friend Sir Menzies Campbell last Wednesday, when he said:
	"If I may again deal with the reciprocal arrangements, it is not true that the United States has a different evidential burden from this country. The probable cause, which is the burden that the United States places on countries that want to extradite from the United States, is analogous to what we now provide under the Extradition Act 2003. It is not correct to say that the United States has been given preferential treatment or that the arrangements in respect of evidence are not reciprocal".—[Official Report, Commons, 5/6/05; col. 807.]
	That is simply and totally incorrect. To explain why that is so, we need to go into a little detail. The extradition treaty between the United Kingdom and the United States was signed in 1972 and came into force a few years later, and is still, at least nominally, in force. Under Article VII of that treaty a request for extradition in either direction must be accompanied,
	"by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed in the territory of the requested Party".
	Under that treaty, it was slightly easier to get extradition from the United States to the United Kingdom than the other way around. That was because in England—and, I understand, also in Scotland—committal for trial requires the prosecution to show a case to answer, or, to use the old Latin phrase, a prima facie case. That means the prosecution has to show evidence that, if not challenged or contradicted by evidence from the defendant, would be sufficient to justify conviction.
	In the United States, a slightly lower standard is needed for committal: the standard of "probable cause", which was written into the fourth amendment to the American constitution. What is required to meet the standard of probable cause is evidence that would provide a reasonable basis to believe that the person in question committed the offence for which their committal is sought.
	The American test is somewhat lower. The test to be satisfied is based on reasonable grounds for belief in guilt, rather than on evidence that, if not contradicted, is capable of proving guilt. I accept that that is a significant, but not enormous, difference. It is far smaller than the difference between having to show reasonable grounds for belief in guilt and having to provide no evidence of guilt at all. In spite of the Government's denial, that is a significant difference, and the Government are in fact misleading us.
	I move on to the new treaty, signed on 31 March 2003 and not yet approved by the Senate. If and when that treaty comes into force, the need for evidence is covered by Article 8.3, which says:
	"a request for extradition of a person who is sought for prosecution shall be supported by"—
	then there are two paragraphs that are irrelevant, so I shall go straight to paragraph (c)—
	"for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested".
	That applies the test of probable cause for extradition from the United States. No requirement for any corresponding information before extradition from the UK is provided for.
	I have two comments on that. First, paragraph (c), which I have quoted, makes it plain, if any proof were necessary, that different standards apply to extradition from the United States and extradition to it. Secondly, reciprocity could be established by simply deleting the words "for requests to the United States" from that paragraph so it was made the same both ways.
	I move on to the Extradition Act 2003 and the order made under it in December 2003, the order mentioned in Amendment No. 186. The Extradition Act, as the noble Lord, Lord Kingsland, explained, divides states into two categories: category 1, which consists of the European Union states and a few others where no evidence of guilt is required for extradition on, at least in the EU, a fully reciprocal basis; and category 2, the territories including the USA and many other states.
	The noble Lord, Lord Kingsland, has explained that under the Act category 2 states are required to produce evidence that would be sufficient to make a case to answer—that is, the traditional British test—unless, under Section 84(7), the Home Secretary has designated category territories from which such evidence is not required. As we know, such an order was made in December 2003. That included the United States and many other countries, most of them parties to the Council of Europe Convention on Extradition, to which the United Kingdom subscribed in 1991 and under which evidence on reciprocal terms is not required. I should say that the Liberal Democrats were the only party which objected to the inclusion of the United States in the list designated under Section 84(7). That was debated in your Lordships' House on 16 December 2003, when we voted against the order and the Conservatives abstained.
	Since that order came into force on 1 January 2004 no supporting evidence of guilt is needed for extradition to the USA, even though the 1972 treaty is still in force. In taking up this position, the Government have made two fundamental errors. First, they should never have agreed to the unequal treaty with the USA. I accept that there could have been no valid objection to lowering the standard for extradition to the USA to the American standard of probable cause. As pointed out already, this could have been achieved by the removal of six words from Article 8.3. There is no justification for the total removal of the need to show some evidence of guilt. Indeed, as again the noble Lord, Lord Kingsland, said, what has happened here shows absolutely the need for parliamentary scrutiny of draft treaties and parliamentary approval as part of the ratification process of treaties entered into by the Government of this country.
	The second fundamental error was to designate the USA under Section 84(7) before the 2003 treaty had been ratified by the USA. That was a tactical error because it removed any incentive for the Senate to approve the treaty, which contains some provisions which are to the advantage of the United Kingdom. The treaty has, however, met with opposition in the USA, particularly from Irish-American groups, and those carry considerable weight with a good many senators. So there is no incentive, and I have no expectation that the Senate will approve this treaty in the remotely near future.
	More importantly, the designation exposed residents of the United Kingdom to extradition under unequal arrangements at a time when there was no obligation under the treaty or otherwise to do so. The number of people against whom extradition to the USA is currently sought is fairly considerable: it is about 15 or 20. Except for the NatWest Three, these cases are still sub judice and cannot be referred to, but they include a number of senior businessmen and some people against whom extradition is sought on grounds relating to terrorism. Those people are entitled to the same protection from unjust extradition laws as are senior businessmen. That was shown quite clearly by the case of Lotfi Raissi, an Algerian pilot against whom extradition was sought under the 1977 treaty on terrorist grounds, but the supporting evidence totally failed to substantiate the case against him and he was released.
	The Government must take action. First, they should recognise the force of opinion in both your Lordships' House and among the public and revoke the 2003 order immediately so far as it applies to the USA. I recognise that there is a time problem here. This Bill will not go back to the House of Commons until late October, so even if the House of Commons were to accept Amendment No. 186, it could not be effective for several months. By that time the NatWest Three and perhaps others will have been extradited to the USA, so immediate action is needed here.
	It would be wrong to extradite people when your Lordships' House has agreed to—as I hope it will—amendments which would prevent their extradition and the House of Commons has not had a chance to consider those amendments. If this amendment is agreed to, the Government should at the very least put extradition on hold until the House of Commons has had time to consider it.
	Next, the Government should renegotiate the 2003 treaty to remove the six offending words and make the extradition test reciprocal. Amendment No. 186, which would remove the designation of the United States under the 2003 order, is the key amendment. Amendment No. 191A, which stands in my name, is consequential on that because it would prevent any re-designation of the United States under Section 84(7) until a reciprocal treaty had been entered into. I recognise that at present the Extradition Act does not recognise any possibility of a halfway house between having to show a full case to answer and having to produce no evidence at all, so further amendmentsto the Extradition Act may be necessary. But that can be dealt with in due course if the principle is accepted.
	I do not accept that the amendment should, asthe noble Lord, Lord Kingsland, suggested, exclude alleged terrorists. The ordeal faced by anyone extradited to the USA on the basis of unfounded allegations of terrorism would in all probability be far worse than the ordeal of people extradited on the basis of unfounded allegations of financial crime. The case of Lotfi Raissi shows that that is a real possibility. As I have already indicated, I would accept a general reduction in the standard of evidence required for extradition to the USA from a prima facie case to one of probable cause.
	I agree with everything that the noble Lord, Lord Kingsland, said on the question of forum and have nothing further to say.
	This group of amendments is an opportunity to correct a grave injustice which has caught the nation's attention. I ask the Government today to undertake the immediate revocation of the 2003 order and to enter into renegotiation of the 2003 treaty. If they fail to give those undertakings, I hope that the Committee will give an overwhelming endorsement of these amendments.

Viscount Tenby: I shall speak briefly and in general terms to support the amendment to which I have added my name.
	The mounting concern in the country about the consequences of the Extradition Act will be apparent to anyone who reads the press, watches television or listens to the radio. The salient points have been made repeatedly today and, if I may say so, in a particularly masterly fashion, by the noble Lords, Lord Kingsland and Lord Goodhart. Accordingly, I do not intend to dwell on the technicalities or to refer to individual cases, however heartrending and disturbing they may be. In any event they have been, or will be, covered by more authoritative voices.
	However, as I said at Second Reading, I, and I suspect many others, backed the main thrust of the proposals some two and a half years ago as a necessary tool in the fight against terrorism—a cause to which we would all gladly subscribe. Looking back, I freely admit that I may have been naïve, certainly unimaginative, about the possible consequences, particularly now in view of the fact that in the succeeding months the number of extradition requests involving so-called white-collar cases has greatly exceeded those of a terrorist nature.
	Since the Bill was passed, some voices have been consistently raised against the way things were going, including that of the noble Baroness, Lady Anelayof St Johns, and, in particular—I apologise if I embarrass him; I am sure that he is not normally embarrassed by such comments—the noble Lord, Lord Goodhart, who has pursued this hare like the legal terrier that he is.
	More recently, the Daily Telegraph has mounted an admirable campaign, highlighting the circumstances surrounding the so-called NatWest Three. All these have made an honourable contribution to the fight to right inept and ill thought-out legislation. The principle of reciprocity in extradition seems such a basic requirement that any Government conscious of their responsibility to their citizens would put it at the top of their wish list in any negotiations with another power, however friendly that power might be. Yet this Government have entered into a treaty with the United States where such reciprocity appears to be but a distant aspiration. This is recklessness and irresponsibility towards their citizens on a large scale and is in contrast to the safeguards in other European countries which as a matter of course extend protection to their citizens.
	I wish the Minister Godspeed in her flight to Capitol Hill. I am sure that if charm and palpable decency were all, her task with the Senate would be as good as won; but I fear that American politics are not like that, especially in an election year. There seems to be general agreement on the two principal reasons standing in the way of US reciprocity. First, it is alleged that the Irish-American lobby is vigorously opposing implementation for fear that we shall seek the extradition of various IRA fugitives from justice, some of whom are thought to be responsible for very serious crimes indeed. Such a reason is contemptible and really not worthy of a great democracy.
	I am more sympathetic to the second reason: that this country is at times dilatory in its prosecution of white-collar crimes, that the prosecutions and trials take too long, and that the sentences often do not reflect the seriousness of the offences. If that is so—and I do not suggest that it is necessarily the case—surely the answer lies in looking to our own arrangements and revising them if necessary, not in providing excuses for other countries, however friendly, to take unacceptable, unilateral steps of their own.
	Perhaps the Committee will allow me to make two more observations. The recent trend of the United States becoming the universal nanny, with FBI agents having almost unlimited powers of arrest, seems to be a disturbing development and one which, in the context of this treaty, will have and is beginning to have the most serious implications for the British business community and British industry. I say that as a lifelong admirer and supporter of the USA. Finally, if I could be presumptuous enough to give some homely—one might almost say "good old boy"—advice to the Government, it would be this: I believe that Americans have long respected and admired independence of spirit and standing up for fairness and equality, and signing up to "I surrender; do what you like with me" legislation is not ultimately the way to their hearts.

Lord Mayhew of Twysden: I support Amendment No. 186, particularly in the context of the journey that the Minister is about to make to Washington— slightly humiliatingly, it seems to me—to plead for our rights. I do so more generally in real dismay atthe turn that events have taken concerning our arrangements for extradition with the United States. The result of those events is a thoroughly unbalanced, unfair and damaging mess which, to be fair to the Government, they did not intend, but which they certainly ought to have foreseen. The cases of the so-called NatWest Three are emblematic of that mess, but the mess does not originate with them.
	The detailed and rather technical components that have created this mess have been very fully and clearly explained this evening, and I would do no one any service to try to put a gloss on them. I shall simply say that real damage is being done to relations with our American friends, even though we know that the Bush Administration have pushed hard for ratification. The trouble is that the Senate, particularly those members who have Irish-American votes in their states, sees no practical need now to proceed to ratify the 2003 treaty. The cases of the NatWest Three have rather luridly brought into prominence the unfairness of the situation that obtains, and comparisons are increasingly being made with other instances where American interests have obliterated any evidence of loyalty to a trusted ally. A pattern is being discerned, and it is not a flattering pattern for America. That can only do increasing harm.
	Therefore, I was delighted to hear that the noble Baroness is being despatched to Washington by the Home Secretary. I agree with what has just been said about the assets that she can bring to any cause. We all have the highest regard for her advocacy, as well as for the charm that she rather unfailing and unfairly brings to bear with it. We wish her luck; I wish her luck at any rate. She will be strengthened and not weakened if this House has shown, at last, that the Brits are not patsies; that they have been taken for a long enough ride; and that they have done what the Americans themselves would have done, and a lot sooner: revoke the designation order. I urge the noble Baroness and those who sit behind her to accept that that is language that the Americans understand and respect. Let it therefore arm her for the fight.

Lord Anderson of Swansea: There appears to bea widespread sense of injustice throughout thisCommittee and in the country as a whole. The noble Lord, Lord Goodhart, has exploded the Government's suggestion that the test for the US and that for our own country is equal.
	The key question is reciprocity. When the Government proposed the order, we were assured that there would be a fairly rapid ratification by the US Senate, but all those who know US politics know that the Executive propose and Congress disposes. The Senate has no incentive to comply, in spite, no doubt, of the very honeyed and persuasive words of the noble Baroness. When do the Government expect the Senate to ratify the order? It is hardly likely to happen before the mid-term elections, for all sorts of lobbying reasons. US foreign policy and US policy in relation to legal obligations are effectively a conflict of interests and, frankly, the US-Irish interest and the interest in re-election is mightier than anything that we might put to the US at this time. There is no reciprocity; there is no serious prospect, in my judgment, of the US Senate changing its mind, in spite of the noble Baroness's visit. Therefore, there will be no pressure, or at least no sufficient pressure, either from the Executive in a mid-term election year or from us.
	The Senate has a constitutional position on treaty ratification. I know well from my previous position chairing the Foreign Affairs Committee in another place that we do not have that constitutional position, but there are constitutional obligations and responsibilities and there are political obligations. Our US friends are proud democrats and they will recognise the proud democracy that is here. There are political imperatives that they must understand when this House, and perhaps also the other place, recognise the injustice in this.
	I leave it at that. It is very likely that this Committee will overwhelmingly say that we are dissatisfied with the current imbalance. The question remains what, if anything, the Government will do about it. There will be a clear expression from us. I hope that the Government will respond to the debate, or at least to the vote that will follow, and say that, given the pressure of public opinion, although we value our very close and warm relationship with the US, it must understand the democratic imperatives here and that sense of injustice. I hope that the Government will say firmly, after due reflection, that the matter should be put on hold and that there should not be extradition of those currently faced with that threat.

Lord Lester of Herne Hill: Like my noble friend Lord Goodhart, I had the privilege of learning much of my law at a great American law school, Harvard Law School, where I studied constitutional and international law. When the Minister visits that nation's capital, perhaps it might help her if she explained to our American friends—and I am a strong friend of the United States—that what we seek in this short debate is reciprocity in the following sense: that the "probable cause" requirement written into the Fourth Amendment to the United States Constitution be applied both ways, to our citizens and to theirs, so that there is equal constitutional protection for both.
	Unfortunately, the Court of Appeal has decided that that protection cannot be provided by the Human Rights Act, which has been trumped in this case. We do not have in this country a constitutional bill of rights that covers the point. As has been said, we do not yet have the treaty scrutiny committee that the committee of the noble Lord, Lord Wakeham, recommended long ago. It might help, and I am sure that it would carry great conviction in the United States, if, armed with the vote from your Lordships' House this evening, that point were made to our American colleagues.

Lord Rees-Mogg: I support the amendment on grounds raised by the Prime Minister in the other place last week but which have not been raised here. It relates to whether extradition to the United States under present circumstances reasonably guarantees a fair trial in that country. The real difficulty arises partly out of the plea-bargaining system in the US. The vast majority of convictions are secured by plea bargaining rather than by open trial, which means that the prosecuting authority has an interest in putting pressure on defendants to agree to a plea bargain—to agree to plead guilty on a lesser offence. Many American defendants plead guilty believing themselves to be wholly innocent. We cannot be responsible for that problem with American law, but it should be a matter of concern.
	The Prime Minister took the view in his replies to questions put to him on the case of the NatWest Three that there was grave concern about the bail conditions that might or might not be available to the three when they returned to the United States. Apparently, American law has taken it as a norm that if a defendant tries to avoid extradition by going to the courts in his own country to argue against it, that is evidence that the defendant is likely to be a fugitive from justice, given half a chance. As a result, most defendants who protest against extradition are not allowed bail. Alternatively, they may be allowed bail set at a high level, which they may not be able to afford.
	The conditions in which remand prisoners are held—not in all states but in some, including Texas, where the three are to be sent—are not such that, in the long period of preparing for a trial, it is reasonably convenient and even possible for defendants to prepare the best defence. They do not have privacy or access to materials required, and, obviously, they do not have free access to witnesses.
	Unless there is some provision, through a renegotiation of the treaty—and I can see no other way to get it—that normally, unless there are solid grounds for supposing that British defendants sent to the United States are likely to abscond, they would be given reasonable and proportionate bail during which to prepare their defence, particularly in complex cases, as are most of the present cases, we are only too likely to be extraditing our citizens in order that they should be deprived of the opportunity of preparing their defence in a fair trial. That is the main reason why I support the amendments.

Lord Hodgson of Astley Abbotts: I support my noble friend's amendments. I have followed the issue of UK/US extradition policy with some interest since the difficulties of the current treaty and the arrangements surrounding it were first discussed during the Committee stage of what is now the Extradition Act 2003. Since then, the noble Lord, Lord Goodhart, tabled an Unstarred Question for debate on this subject on 6 December 2004, and I tabled a further Unstarred Question that was debated on 30 June 2005.
	My concerns about the extradition arrangements and the reasons why I support my noble friend's amendments can be summarised under the three headings of fundamental imbalance, change of purpose and lack of reciprocity. As a subset of that, I, too, am concerned at how the Government sneaked the treaty through without proper parliamentary scrutiny. That did not reflect well on them at all.
	Perhaps I may first consider the second heading, change of purpose, because it has been focused on less by other noble Lords. The treaty was signed inthe aftermath of the terrible events in New York on 11 September 2001, and the Government made it clear at the time that its main use would be to speed up and improve the process by which suspected terrorists would be extradited. In another place, the Government gave assurances that white-collarcrimes would not be the main focus of the treaty. On 15 December 2003, in a debate in the other place, Caroline Flint, speaking for the Government, responded to a Question by Mr Menzies Campbell, MP. She stated:
	"We do not have such a range of offences involving financial crime. The cases mentioned by the Financial Times"—
	there had been an article in that paper on that day—
	"—such as price fixing—would not apply".—[Official Report, Commons, 15/12/03; col. 26.]
	Yet, of the 46 extradition requests made by the US between 1 January 2004 and 28 April 2006, 19 related to financial crime and only three to terrorism. Either we have been misled by the Government about the real purpose of the treaty, or the Government have been misled by their US counterparts.
	My second area of concern is the fundamental imbalance in the treaty. My noble friend Lord Kingsland, and the noble Lord, Lord Goodhart, have already explained this and I shall not weary the Committee by repeating much of what they have said, except to say that it is clear that the US Department of Justice is hell-bent on using this advantage as widely as possible. At a conference in Las Vegas on3 and 4 March 2005, the deputy assistant Attorney General of the Department of Justice's anti-trust division, Mr Scott Hammond, bragged that the US no longer had to make a prima facie case in support of extradition requests or even provide witness affidavits. He went on to say that hearsay affidavits by the prosecutor were enough and that appeal rights had been curtailed. I shall not detain the Committee by quoting from the speeches in Las Vegas, but I can summarise them by saying that they are testosterone-fuelled.
	My third problem is with the lack of reciprocity, given the failure of the US to ratify. It is a scandal that, in the three years since the treaty was signed and brought into force in the UK, the US has failed, despite continued requests to ratify its half—or, perhaps, to be fair, I should say, its quarter—of the agreement. In her reply to the debate that I initiated on 30 June 2005, the noble Baroness stated:
	"Nevertheless, the Government are not being complacent...I hope your Lordships will be pleased to learn that my right honourable friend the Home Secretary raised this very matter with the new US Attorney-General Alberto Gonzales, in the margins of the G8 meeting in Sheffield on 16 June. I hope noble Lords will be reassured to know that the Attorney-General had the misfortune to be sitting with me on a bus, from which he could not escape for some considerable time. So I too had the privilege and pleasure of explaining to him in quite graphic detail, why this matter was causing your Lordships acute anxiety".—[Official Report, 30.6/05; col. 410.]
	No doubt, as my noble and learned friend Lord Mayhew has pointed out, the noble Baroness was as charming to Mr Gonzales as she always is to this House. Charming she may have been, but persuasive she most certainly was not. It is now 13 months since Sheffield and matters have not moved forward one jot.
	The removal of the US from Part 2 of the Extradition Act 2003 would return requests to the same basis as that on which they were conducted under the 1972 treaty, and this will create the reciprocity that I seek. It will also perhaps provide some backbone to the Government's negotiations with the US, which now appears to be conspicuous by its absence.
	Finally, I hope that when the noble Baroness comes to reply, she will not fall back on the argument she floated in the Financial Times earlier this week: that approving this amendment would be "an insult" to the US judicial system. Nothing could be further from the truth; it is the extradition treaty that is the insult. Only if the Government were today to state that they had given the six-month notice necessary for the revocation of the treaty under Article 24 would this amendment in any way become superfluous.

Lord Monson: In the article in the Financial Times yesterday mentioned by the noble Lord, Lord Hodgson—I say this much more in sorrow than in anger, because I share the general admiration for the noble Baroness expressed in this Committee today—the noble Baroness, Lady Scotland, accused those of us who oppose the Government in this matter and who support these amendments of trying,
	"to score an anti-American party-political point".
	I wonder if, on reflection, she might concede that this is a wholly unfair accusation and in 99.9 per cent of cases completely untrue. We may strongly disapprove of Guantanamo Bay and of certain aspects of the American penal system. Like my noble friend Lord Rees-Mogg, we may also be uneasy at the plea-bargaining system which is becoming more and more prevalent in the United States, which seems in practice to net some of the slower-witted small fry while letting the wily big fish off the hook. None of this makes us anti-American, not least because so many Americans feel exactly the same way.
	In the same article in the Financial Times, the noble Baroness went on to refer quite reasonably and properly to the "alleged conspiracy" and the "alleged co-conspirators", speaking of the NatWest Three. However, in a BBC Radio 4 interview heard by millions two days earlier—on Saturday, 9 July—in arguing that the extradition of the NatWest Three was right and proper, she asserted: "There are"—note that word—"co-conspirators in America". No if's and but's here and no use of the qualifying words "alleged", "possible" or "suspected". Only those guilty of conspiracy can have co-conspirators. It stands to reason. So here we have a clear-cut, prejudicial presumption of guilt. In other words, a senior member of this Government—somebody renowned for her legal skills, talent, expertise and experience—has in effect publicly declared that those whom the Government are happy to have extradited are indeed guilty. How in such circumstances can they possibly receive a fair trial in the United States?

Baroness Scotland of Asthal: I say straight away that the Government share the feeling of frustration, if not irritation, that the treaty has not been ratified. There are certain myths that I would like to put to rest. Before I attempt to do so, I thank all noble Lords who have showered me with compliments on my ability to persuade, having by the content of their remarks demonstrated my total lack of it.
	I turn to the issues raised first by the noble Lord, Lord Kingsland, and then by the noble Lord, Lord Goodhart. I say straight away that both noble Lords have conflated two arguments—the first should properly relate to the Act and the second relates to the treaty. The first myth—I believe it is a myth—is that the Extradition Act 2003 was intended solely or primarily to deal with terrorism. That point was highlighted in today's debate by the noble Lord, Lord Hodgson of Astley Abbotts, among others. I say as gently as I can that that simply is not true. The Act covers all manner of crime that is serious enough to attract a maximum sentence of at least 12 months in prison.
	I am sure that noble Lords will remember that we first started to consult comprehensively on this part in March 2001, prior to the 9/11 atrocity. Its origins lay partly in the early development of the European arrest warrant in 1999 and largely in the need to update an extradition system that dated from 1870, the time of Gladstone. It indicated that the old system was, if I may use the phrase, no longer fit for purpose at the advent of the 21st century, when crime had become ever more global. There are, even now, cases which have been going on for years under the old legislation. Many noble Lords remember the case of Ramda, in which it took over 10 years to extradite to France an individual alleged to have been a terrorist who blew up the St Michel metro station in Paris. Subsequently that individual has been dealt with.
	The Home Office review published in 2001 set out the basics of what would become the new Act. Although much has been made of white-collar crime, your Lordships will remember that fraud cases, which are the majority of the cases under the new Act, are a much wider offence than the limited nature of offences to which the article in the Times referred. The cases range from murder, rape, drugs, money laundering, child pornography and robbery to sexual offences in relation to children and so on.
	The second myth, implicit in the comments of the noble Lord, Lord Goodhart, is that the US needs to provide us with next to none or no information when making a request. That is not accurate either. To substantiate an application for extradition, the United States has to satisfy the provisions in Section 71 of the Act. I remind the Committee, just in case this has been expunged from noble Lords' memory, that Section 71 provides that:
	"The judge may issue a warrant for the arrest of the person whose extradition is requested if the judge has reasonable grounds for believing...that the offence in respect of which extradition is requested is an extradition offence, and...there is evidence falling within subsection (3)".
	Subsection (3) outlines the precise evidence, and that is,
	"evidence that would justify the issue of a warrant for the arrest of a person accused of the offence within the judge's jurisdiction, if the person whose extradition is requested is accused of the commission of the offence...[or] evidence that would justify the issue of a warrant for the arrest of a person unlawfully at large after conviction of the offence within the judge's jurisdiction, if the person whose extradition is requested is alleged to be unlawfully at large after conviction of the offence".
	That test is similar, although not identical, to probable cause. But it goes further: in order for the United States to make a request to us, they have to satisfy themselves that in accordance with their law, there is sufficient evidence to establish probable cause. So, before it is entitled to issue a warrant or make an application for the extradition, that test has to be made, and all the requests made of us by the US must satisfy its test of probable cause. That is the evidence that it sends to us.

Lord Goodhart: I am grateful to the noble Baroness for giving way. Is she suggesting that the view of an American judge on the existence of probable cause, which is one in which the Americans have a very clear interest, can be relied upon without being confirmed by a judge in the United Kingdom?

Baroness Scotland of Asthal: I think that it can to the following extent. A process has to be gone through in the United States in order to allow the Americans to make the request within their rules. They will have to satisfy themselves that there is a case in relation to probable cause. They, and we, are content that Section 71 of the 2003 Act, which refers to evidence, can be read in relation to the information that is provided in a similar way. So there is no dissonance between the prosecution authorities in our country and the US on that matter.

Lord Anderson of Swansea: If, as my noble friend says, there is currently an equivalence of test, why all the fuss about ratification and why the visit to Senator Lugar? Why are we putting pressure on the Senate and on the US Administration?

Baroness Scotland of Asthal: I can answer that very simply. As I tried to establish, there is a conflation of two issues. The first relates to the 2003 Act. When this matter was debated in 2003, we asked whether there should be a benchmark to apply to all the countries with which we were in comity and whether that should be the test, irrespective of the arrangement that we had with them or they had with us. We decided that that benchmark should be maintained. Some of the provisions in the 2003 Act are replicated in our treaty with the Americans. But we and the Americans will not be able to take advantage of certain provisions—for example, on temporary surrender—unless and until the treaty is ratified.
	So there are provisions in the 2003 Act of which the United States can avail itself in the same way as can all the other countries listed in the same part of Part 2 of the order. There is a broad spectrum of countries in that category, from Algeria right the way down to New Zealand. It is a very broad spectrum in which the United States is but one country. We decided that there was no cogent reason why we should treat the US significantly differently from how we were minded to treat the other countries in the same schedule.

Lord Tebbit: I hope that the noble Baroness can help me because, as she knows, I am not a lawyer and I do not understand these things very well. If the tests are the same on both sides of the ocean, can she say why we have rarely been successful—in fact, I think we have never been successful—in extraditing from the United States an IRA alleged fugitive from justice?

Baroness Scotland of Asthal: The noble Lord will know that we have been successful in extraditing many people from the United States. Indeed, under the 2003 Act, so far we have had no refusals of whatever nature from the United States. All the applications that we have made have either been granted or are currently under consideration. So, in relation to the benefits of the 2003 Act, as opposed to what went on before, I can only reassure the noble Lord that that difficulty does not seem to be present now.

Lord Lester of Herne Hill: If all is as the Minister described, can she explain why Irish-Americans are opposing ratification?

Baroness Scotland of Asthal: I cannot answer the noble Lord on the issue of Irish-Americans, but I can tell the Committee that this matter is being vigorously debated in the United States Senate and that people are taking different views. One issue raised is whether Irish-Americans are influencing that, but I think that it would be wrong for me to comment. I should correct myself: earlier I think that I said Algeriawhen I meant Albania. I was conflating the two inappropriately.

Lord Thomas of Gresford: Does the Minister agree that all that has to be done now is for an American investigator, through a lawyer, to say that there is a case and we will send someone back to the United States? That is not the situation in the United States, where primary evidence is required to show that there is probable cause.

Baroness Scotland of Asthal: That is not right. Section 71 sets out clearly that the evidence would have to be sufficient to justify the issue of a warrant for the arrest of a person accused of that offence.

Lord Thomas of Gresford: I—

Lord Mayhew of Twysden: Does—

Baroness Scotland of Asthal: I shall not give way just now. I had reached the second myth and there are still several to go. I am sure that I shall be able to respond but I invite the Committee to allow me to attempt to respond to the questions that noble Lords have already raised before I go on to deal with the rest.

Lord Mayhew of Twysden: I may be able to save the noble Baroness from the risk of misleading the Committee. She referred us to Section 71 but she did not refer us to Section 71(4), which says that, if the requesting country is a category 2 territory which is designated for the purpose, you do not have to read that section as requiring evidence because information will do. That is a very different matter, as I am sure the noble Baroness will agree.

Baroness Scotland of Asthal: I tried to correct myself. I said "evidence" and then "information", correcting myself on the second occasion. The noble and learned Lord, Lord Mayhew, is right. However, we say that the information sent is sufficient to justify the issue of the warrant. Noble Lords will know that the information sent in the Enron Three case involved affidavits and various other data. I say that because I have now had the benefit of reading Lord Justice Laws's full judgment. If the noble and learned Lord, Lord Mayhew, has looked at the content and identification of the evidence or information provided, as I am sure he has done, he will have seen that it appears to have been fairly comprehensive in the way in which it was referred to by the court.

Lord Thomas of Gresford: Does the Minister agree that information is not evidence and that there is no basic evidence put before a court in this country upon which a judge can make a judicial decision?

Baroness Scotland of Asthal: I do not agree. Prior to reading the decision of Lord Justice Laws andMr Justice Ouseley, I would have said that, on the basis of belief and assumption. However, having read the judgment, I can see very clearly that the evidence and information provided was of a very substantial nature. So information has to be provided, and I argue that it is clear that that information is of a fairly high or good quality.
	We do not accept that there is such a lack of reciprocity as to justify removing the United States from the group in which it currently sits with many other countries. If we remove the US for white-collar crime—or fraud, to give it its proper title—and for everything save terror, we will disable ourselves and the United States in dealing expeditiously with a number of other pernicious offences: sexual offences, such as rape; capital offences in the US, such as murder; and many others, too. I do not believe that that will inure to our country's benefit or indeed to that of the United States.
	I have dealt in part with the third myth, which is that there is no reciprocal arrangement or direct reciprocity. As I tried to explain, and I hope the Committee will accept—although there is not exact reciprocity, which is almost impossible between any two legal systems—when we have looked at the matter—and we have been asked to do so many times; it was first raised, as the noble Lord, Lord Goodhart, rightly said, in 2003—we have been content with the view that we arrived at a while ago: namely, that we have appropriate parity.
	We have discussed this matter with the United States and are entirely satisfied that the way that they interpret the phrase that I have just used—
	"such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested"—
	is broadly equivalent to the way in which they use the phrase "probable cause". There is no dissonance between us and them. That is broadly the information required to justify the issue of an arrest warrant in both countries. That is why I say that there is parity and there is not an issue regarding lack of reciprocity. Perhaps I can underline the point on reciprocity. When US prosecutors make a request to us—and this is the point we have had clarified for us—they have to justify just the same test, because they have to include their domestic arrest warrant in their request to us. As I said, that means that they have to satisfy their own magistrate on probable cause. We believe that that helps to demonstrate reciprocity.

Lord Richard: My noble friend says that there is broad parity and broad reciprocity. What, then, is she going to try to persuade the Senate to do? If the arrangements are already reciprocal, why is she being sent out to Washington with a brief to sit down and persuade the Senate that it should now ratify something that may not be as reciprocal as what they've got?

Baroness Scotland of Asthal: The reason is that there has been an unfortunate conflation between the failure to ratify the treaty and the terms that exist between us and them as a result of the 2003 Act. In the public mind, as has been evidenced in this Committee today, there is an erroneous belief that we have to remove our citizens to America without any evidence at all—that is the import of what is suggested—while they are not obliged to do the same for us. As there is antipathy for the failure to ratify, there is a lack of confidence—a reduction in confidence—that we and many of our citizens enjoy with the United States. It is damaging to our relationship for this confusion to continue. For that reason, we believe that it may be helpful for me to make those points clear, on a face-to-face basis, in America.
	The fourth myth is that the basis on which cases such as the Enron Three have been decided is fundamentally flawed and that these three people are to be extradited because of a failure to ratify the treaty. That is simply not correct. The treaty is not yet in force but, as I hope the Committee will now be aware, the arrangements under the Extradition Act 2003 which set the current procedures for extradition requests to the United Kingdom fromall extradition partners would have operated to allow the extradition of the three people accused of involvement in the Enron fraud. So although in making the arrangements we implemented the part of the treaty that allows that to happen, the information requirement remains.
	The fifth myth is that the United Kingdom has insufficient safeguards for its citizens within the arrangements. That too is simply not true. I have set out the safeguards on many occasions but it may be appropriate if I quickly summarise them: identity, dual criminality, a request made for improper reasons, double jeopardy; injustice due to illness, ill health or passage of time, and the human rights provision. The human rights safeguard is important. I hear what the noble Lord, Lord Lester, says about the import of the case of the Enron Three, but that is not the full conclusion that one reaches when reading the decision. In this decision the court referred specifically to Article 8 of the convention and the comments were made in relation to that and not to the whole of the ECHR. At the end of the judgment, Lord Justice Laws said in terms that, in any event, for the reasons that I gave in dealing with the appeal against the judge, the defendants had and have no ECHR case. The court reached a general view that the defendants in the Enron Three case had no ECHR case. I know that the noble Lord, Lord Lester, will agree that Lord Justice Laws and Mr Justice Ouseley are nothing if not expert in the Human Rights Act and the ECHR. And that was their finding. I still believe that the Human Rights Act provides a very important safeguard regarding this treaty. The last two safeguards concern the death penalty and speciality.
	The sixth and final myth—although there seem to have been so many myths that it is difficult to know when to stop—is that people may be extradited without a nexus being established with the jurisdiction requesting their extradition. That has arisen in the Enron Three case. In fact, the courts must find that a request is extraditable. In the Enron Three case, the courts found that the alleged conduct had taken place in the United States, and of course the money which the men are alleged to have made was in Enron dollars and Enron shares. Even if the extradition is sought by any other country for offences that are extra-territorial, then we must recognise those offences also as extra-territorial under the extradition principle of dual criminality enshrined in the Act. In the judgment in that case, the court specifically dealt with those matters. One myth which seems to have been promulgated is that this was a British case. The judges dealt with that very specifically in upholding the decision in the Enron Three case. In paragraph 47 they said:
	"The losers were Enron and National Westminster Bank...
	This is a case where the evidence is to be found in the United Kingdom, Cayman Islands and the United States of America. In particular the other participants in the alleged conspiracy—Kopper and Fastow—are to be dealt with in, and are available to give evidence in, the United States. In these circumstances I think it more likely to be in the interests of justice for your clients to be tried in the United States".
	The issue of forum was dealt with comprehensively and looked at, and it was a proper matter to be dealt with by the courts here. It is therefore simply not right that cases with no nexus with our country can be dealt with in this way.
	When the Act was in preparation, thought had to be given to the basis on which we differentiate between our extradition partners. We already had a large group of more than 40 countries from which we did not require prima facie evidence, consisting of most of the countries of continental Europe under arrangements set up by the Conservative Government in 1991, when they acceded to the Council of Europe's European Convention on Extradition. Israel and South Africa, as associate members of the Council of Europe, also participate in the ECE. We have had an international obligation ever since to every country that has joined the ECE. That includes countries such as Albania and Azerbaijan, to take just the beginning of the alphabet. I remind noble Lords who may be concerned about how such requests are dealt with that the Human Rights Act applies.
	The question then arose of how to deal with non-Council of Europe countries with whom we have close relations. Those include not just the United States but also Australia, Canada and New Zealand. It is worth noting that those countries allow us to make requests not just on comparable terms but, in the case of New Zealand, on terms quite similar to those of the European arrest warrant; and for Canada simply on the basis of a statement of the case, which is probably rather less than probable cause. In sum, then, the removal of the prima facie requirement, although not appropriate for every country, is consistent with the faster and more flexible approach to extradition that is needed in the modern world. There is no benefit to anyone in our judges having to hold mini-trials on the facts in an extradition case when we can trust the requesting state to hold a fair trial of the evidence.
	That leads me to what I respectfully but regretfully say to the noble Lord, Lord Rees-Mogg, was a caricature of the American system. The American system believes in fair trials, legal representation, the ability of individuals to appeal and just delivery. To caricature the United States as a country that operates differently from that is most regrettable.

Lord Rees-Mogg: Would the Minister not agree that the standards of justice and the standards of prisons, which are very important in this case, vary enormously from state to state? Generalisations cannot safely be made about the quality of justice in the United States. Some of it is as good as justice anywhere in the world, and perhaps better; some of it is deeply unsatisfactory.

Baroness Scotland of Asthal: I hear what the noble Lord says, but the United States of America is the United States of America. It would be as invidious to compare Dorset with Manchester and Manchester with London and to say that it is variable.

Noble Lords: Oh!

Baroness Scotland of Asthal: It is the reality of where we are. The United States has a system that is part federal and part state. Within that system there is an allowance for difference. We cannot recast the United States into a way that we would prefer.
	I turn to some of the very specific issues raised by noble Lords. The noble and learned Lord, Lord Mayhew, suggested that we would be strengthenedif this Committee resoundingly supported this amendment. However, that is not the likely consequence or reaction that the United States may have to such an act. We have to look very carefully indeed at the basis on which we could logically justify removing the United States from Part 2 and the order in which it currently fits while allowing other states—which may also not have a treaty that inures to their benefit—to have the benefits and stay in the same place. That is a real difficulty.
	The noble and learned Lord also asked me to deal with the issue of forum. We basically find ourselves in the following position: having extended inclusionto the United States, we would be removing it notwithstanding the fact that, as Ambassador Tuttle made clear in the article he put in the Financial Times, it has honoured requests from us. It has surrendered people from its jurisdiction to ours and believes that, in so doing, it has behaved honourably and well and in comity to us. So in practice the question would be: on what basis do we say that the US has behaved so improperly that it should be deprived of a benefit granted to it, a benefit from which we too have already benefited? I have heard nothing this evening that would give me comfort about what I could say to it to explain that.
	I am aware of the frequently expressed concernof the noble Lord, Lord Goodhart, about the designation of the United States; indeed we have debated the point on more than one occasion. The amendment would require the United States once more to provide prima facie evidence with its extradition request, as it did before the Extradition Act 2003. I was grateful to the noble Lord for his acceptance that the prima facie evidence standard is greater than the United States has ever asked from us. As a result, on Amendment No. 191, we think thatan insistence on precise reciprocity of evidential requirement between our two jurisdictions before the United States could be re-designated would be flawed. The amendment is unnecessary because the arrangements currently in place achieve, as I have tried to indicate, a reasonable balance.
	The forum argument can be well dealt with by virtue of what happened in the Enron Three case. The forum issue could quite properly be discussed. The court considered all the issues on those matters that the noble Lord, Lord Kingsland, has set out. We believe that the current system allows those issues to be dealt with in an efficacious way.

Lord Brittan of Spennithorne: If the current situation is so entirely satisfactory, as the Minister seems to be saying, why on earth do we want the treaty to be ratified by the United States? Is it really just in order to clarify the situation and to destroy the myths that she has referred to? If not, what benefits will we get from ratification of the treaty which we do not have at the moment? She has not said anything about that.

Baroness Scotland of Asthal: I have, but I am very happy to clarify it. One of the main benefits that we will get from the treaty, which we do not have now, concerns temporary surrender. That is important, but so is the removal of time limits. At the moment each extradition offence in the United States has a limit attached to it. So, for example, if we had evidence in our country that better identifies an offender through DNA—and our DNA work is so much better than it was 20 or 30 years ago; because of the incredible advances we are identifying perpetrators of pernicious, awful crimes as we could not do 20 or 30 years ago—because of the statute of limitations which applies to the different offences, and under the treaty currently, we could well have real difficulty extraditing people to this country to stand trial. If we had the benefit of the treaty, those matters would be much easier. So there are a number of benefits that go beyond the basic provisions of the 2003 Act. Neither we nor the United States would be able to take advantage of those provisions unless and until we ratified in the way that we have both wanted for a long time. Its ratification and our ratification will give to our respective countries the full benefit of the treaty which we have now wanted for a considerable period.
	I can certainly assure noble Lords that I will leave the United States in no doubt whatever of the passion that is felt on this matter and the depth of concern that your Lordships have expressed. I say to the noble Lord, Lord Hodgson of Astley Abbotts, that it appears that our joint advocacy may have had some influence on Attorney General Gonzales, because he has been a vociferous supporter of ratifying the treaty. However, the Senate is very much like this place: it may listen, but it is not always persuadable.

Lord Phillips of Sudbury: May I ask the noble Baroness a question that may be in the minds of many Members of the Committee, especially the non-lawyers? We have heard a very engaged debate, conducted on this side by two highly distinguished Queen's Counsel—experienced lawyers—supported by no fewer than four other Queen's Counsel, some of them former Officers of the Crown. Is the noble Baroness saying that the six of them, not to mention the other distinguished contributors in favour of the amendments, are completely wrong and that they are building the amendment and their arguments on a phantasm and that, in effect, reciprocity already exists and all due process and protections are in place? It is a bizarre debate.

Baroness Scotland of Asthal: What I am saying quite clearly is that, first, I understand the strength of feeling that has been expressed in this Committee as a result of the failure to ratify the treaty. The expression has been about fairness—that it is unfair that the Americans should have any portion of the advantage that was inherent in the 2003 treaty without having ratified. I understand the nature of that assertion.
	I also understand that there is an argument as to whether there is perfect parity between evidence necessary to justify the issue of a warrant and probable cause. I have tried to explain to the Committee why I believe that the anxiety about those two matters is flawed—first, because the Americans have accepted that the two tests are very similar; secondly, and much more importantly, they have to satisfy the probable cause test before they ask for extradition from us. The information that they have been sending us seems to comply with that test.
	So our position is that we do not see why America should be treated significantly differently from the other countries which currently have the advantage of that part of the Act. I have heard nothing in this debate to give any justification for that differentiation.

Lord Christopher: Would my noble friend be kind enough to confirm that I have heard and interpreted her correctly: that this is about serious alleged offences having taken place in the United States and that the evidence, or the principal evidence, for those alleged offences is in the United States and would probably not be available here?

Baroness Scotland of Asthal: That is what the decision of Lord Justice Laws and Mr Justice Ouseley appears to make crystal clear.

Lord Kingsland: I can be relatively—indeed, exceedingly—telegraphic. At the beginning of her response to this debate, the noble Baroness accused both me and the noble Lord, Lord Goodhart, of conflating the issues. I hope that when she reflects on what has been said today, she will disagree with her own assessment. Both the noble Lord and I have made clear from the outset that there were two distinct issues in the debate. The first was ratification; the second was reciprocity.
	The noble Baroness has said very little about ratification. She has not explained to your Lordships' satisfaction—I trust, when we come to the vote—why the United States should be having its cake and eating it, why it should have all the benefits and none of the burdens of the treaty—not that the burdens of the treaty are very great. I can understand that, for a short period, that might be acceptable; but for two and a half years, it is not.

Baroness Scotland of Asthal: I had hoped thatthe noble Lord had understood what I have said: that the United States does not have the full benefit of the treaty. It has those benefits that we have given each country that appears in Part 2, in which it sits. It has nothing more than that and if it wishes to have the benefit of the further provisions, it must ratify the treaty.

Lord Kingsland: It is plain from the recent Court of Appeal decision that it has the full benefits of the treaty. It is equally plain that we have none of them. That is why we tabled Amendment No. 186.
	I said at the outset that I would deal with all the other amendments in opening; I have done so. I shall now deal with the other amendments in closing. Central to the response of the noble Baroness has been her contention that the tests in the treaty signed by Mr Blunkett and Mr Ashcroft are essentially of equal weight. That is not something that she said in response to the debate on the 2003 provision; but she is saying it now.
	I draw the attention of the noble Baroness to Article 8 of the 2003 extradition treaty. That deals with extradition procedures and required documents. Paragraph 3 states:
	"In addition to the requirements in paragraph 2 of this Article, a request for extradition of a person who is sought for prosecution shall be supported by:
	(a) a copy of the warrant or order of arrest issued by a judge or other competent authority;
	(b) a copy of the charging document, if any; and
	(c) for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested".
	There is no equivalent provision in the article for the United Kingdom. I simply do not believe it credible that the assertions of the noble Baroness about probable cause, made in response to the noble Lord, Lord Goodhart, can possibly be right.
	The noble Baroness dealt very briefly with the issue of forums. We have signed a treaty not just with our European partners, but with all those European states which have signed up to the European convention, enshrining the forum concept contained in our Amendment No. 189. That provides that the judge ought to decide, in all the circumstances of the case, if an offence was capable of being prosecuted in this country, whether it should be prosecuted here or go abroad—whether to the United States or otherwise. That is a very simple amendment that the noble Baroness could make to the Extradition Act 2003. She has given no indication that she intends to do so. That would be an easy way out for her. If we had that forum test, it would prevent further pressure being placed on her to renegotiate the treaty itself.
	As for the human rights protections, I was very surprised to hear the noble Baroness saying that she thought that the human rights issues had been dealt with satisfactorily by the Court of Appeal. Of course they had in the context of the existing law but, in terms of an appropriate balance between the extradition treaty and the human rights convention, the decision of the Court of Appeal revealed that amendments are necessary to rebalance the rights of individuals when they face extradition proceedings.
	A number of noble Lords suggested that the Minister had conducted her response extremely charmingly but equally extremely unpersuasively. If I had received a set of instructions, such as those given to the Minister, from a solicitor, I would certainly have returned them immediately. I wish to test the opinion of the Committee.

On Question, Whether the said amendment(No. 186) shall be agreed to?
	Their Lordships divided: Contents, 218; Not-Contents, 116.

Resolved in the affirmative, and amendment agreed to accordingly.
	Schedule 14 [Extradition]:

Lord Kingsland: moved Amendment No. 187:
	Page 134, line 3, at end insert-
	"(j) forum.";"

Lord Kingsland: I believe that Amendments Nos. 188, 189 and 190 are consequential on Amendment No. 187. I have already spoken to the amendment and I beg to move.

Baroness Scotland of Asthal: This group of amendments were briefly alluded to in our debate on the previous group, but the arguments were not developed. It is our view that these two groups are significantly different from each other. In order to complete those arguments, it may be right for me to put on record our fuller contentions. Bearing in mind the previous vote, I appreciate that a Division on this amendment is likely to have the same result. So, to complete the slap which this House wishes to give the other place, I want to make it plain that on behalf of the Government I did justice to the arguments that were put.
	The effect of the amendments would be to require the district judge in an extradition hearing to decide whether the wanted person should be tried in the United Kingdom if the person is not to be let free. I would suggest that that would not be practicable in the United Kingdom, as it is not required of judgesin any other context. It is the prosecuting authorities in the United Kingdom which decide whether to bring a prosecution, basing their decision on the usual public interest test. When a person is sought for extradition, there is right now no legal bar to stop the prosecuting authorities from deciding to launch a domestic prosecution for the extradition offences, provided there is the jurisdiction to do that. If a domestic prosecution was launched, the extradition request would be adjourned. It would almost always be terminated if the person was later acquitted or convicted of the offence.
	That part of the amendment which requires the judge to take into account whether the competent UK authorities have decided not to prosecute would introduce a possible cause of delay to extradition proceedings, as judges might have to adjourn to ascertain the position of those authorities which may not even be aware of the allegation. If the authorities decline to take a decision on these matters, to what extent would that help the judge decide whether it is in the interest of justice that a person should be tried in the requesting state? Those matters were not dealt with by the noble Lord, Lord Kingsland.
	Even if the judge had such a thing as a clear decision before him, would that really assist him? A decision not to prosecute domestically might bean indication that the circumstances favoured prosecution taking place in the requesting state; but that is not a test which our prosecuting authorities are required to apply. Nor could a judge take such a decision as an indication that no prosecution should take place, even in the requesting state. A decision on that basis would risk breaching our international obligations to the state which has decided that it is able to try the wanted person.
	In summary, this part of the amendment would not have the effect that the noble Lord anticipates. It would not provide the necessary assistance to the judge. Although both the framework decision onthe European arrest warrant and the European Convention on Extradition have an optional ground for refusal of extradition where the offence was committed in whole or in part in the territory of the requested state, the United Kingdom has chosen not to implement this ground for refusal explicitly inits law.
	The United Kingdom has in the 1989 and the 2003 Extradition Acts implemented a slightly different ground for refusal. It is based on dual criminality where the offences for the wanted person were committed outside the requesting state. In the interests of justice, the United Kingdom took the view when enacting both Acts, that extradition could proceed where the person was wanted for conduct committed at least partly in the United Kingdom, providing that the UK had the same jurisdiction to try the conduct if it had occurred outside the UK. That degree of flexibility is important in many extradition cases where the person is wanted for complex cross-border crimes concerning, for example, people trafficking, drugs trafficking and money-laundering, and where in theory a number of states had jurisdiction to try the case. An example, of course, is the Enron Three case where the court, in reviewing the decision by the Serious Fraud Office not to prosecute, came to the conclusion that this was an American case and that the prosecution should take place in that country.
	Finally, if there was to be any way forward on the issue of forum, it would have to take into account the need not to fetter the discretion of our independent prosecuting authorities. It would have to be a solution that would not introduce unnecessary delays in the system. It would have to meet our international obligations; and it would indeed have to operate in the interests of justice. We have a proud history of our prosecutors being able to make independent decisions free from the Executive and free from any other improper influence. I therefore urge your Lordships not to confuse the two amendments—they are separate and distinct—and not to press this amendment at this time. Having had a resounding success, I invite the noble Lord, Lord Kingsland, to be content with that and not to press this amendment at this stage.

Lord Kingsland: I spoke to these amendments at an earlier point and there is only one additional matter to which I wish to draw the attention of noble Lords. I am prompted to do so by the comments of the noble Baroness about the appropriateness of the judiciary making judgments about forums.
	The United Kingdom has been a party to two European conventions; one is the Council Framework Decision of 13 June 2000 on the European arrest warrant and surrender procedures and the other is the European Convention on Extradition. Paragraph 7 of Article 4 of the Council Framework Decision states:
	"The executing judicial authority shall refuse to execute the European arrest warrant,
	7. where the European arrest warrant relates to offences which:
	(a) are regarded by the law of the executing member state as having been committed in whole or in part in the territory of the executing member state or in a place treated as such".
	So during the term of office of this Government they have agreed, on behalf of the United Kingdom, to that clause in that decision. It is quite plain that we think a judge is entitled to take that decision. Similar provisions are set out in Article 7 of the European Convention on Extradition.

Lord Tebbit: I wonder if my noble friend could help me on a point. I have heard several references this evening to the Enron Three. Who are these three people who presumably have been convicted in a court of law of having some connection with Enron?

Lord Kingsland: I share the conclusion reached by my noble friend. I understood them to be described as the NatWest Three because it has been alleged that they sought to defraud NatWest. I know nothing about any fraud on Enron.

Baroness Scotland of Asthal: Since it was I who referred to the Enron Three, for his erudition I invite the noble Lord to look at paragraph 66 of the judgment of Lord Justice Laws and Mr Justice Ouseley who said that,
	"It is important that on the prosecution case the benefit received by the defendants and their alleged co-conspirators was derived from funds paid by Enron on the strength of false representations made to the company by Fastow. Enron was deceived into parting with 20 million US dollars. What the director thought about the views of the City of London Police in 2002 is in my view neither here nor there".
	So the court thinks that they are the Enron Three.

Lord Kingsland: I am not aware, at this stage of the judgment, that the court is entitled to take any view about guilt or innocence. That, I thought, was the whole point of the noble Baroness' argument right at the beginning.

Baroness Scotland of Asthal: I agree. I am simply seeking to clarify why I referred to them as the Enron Three. I did so because in the judgment it appears that the allegation—it is but an allegation—is that it was Enron which was defrauded in the way complained of. That is not my judgment; it is not what the Government say; I am simply referring to the judgment of Lord Justice Laws and Mr Justice Ouseley.

Lord Kingsland: If what was said in paragraph 66 of the judgment of the Court of Appeal was not intended as a reflection either on their innocence or guilt, how can that paragraph possibly be an answer to my noble friend's question? I wish to test the opinion of the Committee.

On Question, Whether the said amendment(No. 187) shall be agreed to?
	Their Lordships divided: Contents, 192; Not-Contents, 109.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Kingsland: moved Amendments Nos. 188 to 190:
	Page 134, line 5, leave out "19A"" and insert "19B""
	Page 134, line 23, at end insert-
	"19B FORUM.
	(1) If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interests of justice that the person should be tried in the category 1 territory.
	(2) In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested.""
	Page 142, line 5, at end insert-
	"Bars to extradition
	(1) Section 79 (bars to extradition) is amended as follows.
	(2) After paragraph (d) of subsection (1) there is inserted-
	"(e) forum."
	(3) In subsection (2), for "83" there is substituted "83A".
	(4) After section 83 there is inserted-
	"83A FORUM
	(1) If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interests of justice that the person should be tried in the category 2 territory.
	(2) In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested.""
	On Question, amendments agreed to.
	[Amendment No. 191 not moved.]

Lord Goodhart: moved Amendment No. 191A:
	Page 142, line 5, at end insert-
	"14A (1) Section 84 (case where person has not been convicted) is amended as follows.
	(2) After subsection (7) there is inserted-
	"(7A) The Secretary of State may not make an order under subsection (7) designating the United States of America for the purposes of this section unless there is in force an agreement with the United States of America pursuant to which an order for the extradition of persons from the United States of America to the United Kingdom may be obtained in terms relating to the production of information and evidence similar to those which apply to extradition from the United Kingdom to the United States of America after the designation takes effect.""
	On Question, amendment agreed to.
	Schedule 14, as amended, agreed to.

Lord Bassam of Brighton: I beg to move that the House be resumed. In moving the Motion I propose that the House should again consider the Bill in Committee no later than 8.45 pm.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Royal Assent

Baroness Hayman: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts and Measures:
	Childcare Act,
	Electoral Administration Act,National Lottery Act,Leicester City Council Act, Liverpool City Council Act, Maidstone Borough Council Act,Church of England (Miscellaneous Provisions) Measure,Pastoral (Amendment) Measure.

British Coal Compensation

Lord Lofthouse of Pontefract: rose to ask Her Majesty's Government what is their assessment of the role of solicitors and the Law Society in the British Coal miners' compensation litigation.
	My Lords, I declare an interest having been a claimant and as the author of an article in the Times on 30 May 2006, for which I have received payment. Both of these payments have been paid to the Prince of Wales Hospice in Pontefract.
	I rise to address your Lordships' House in sadness and disgust—disgust at the solicitors claiming fees from miners' compensation when they have already received agreed fees from the Government of £2,100 per case. Having been fighting in your Lordships' House and in another place for the past 24 years for justice for disabled miners, I feel some responsibility speaking for thousands of elderly miners and widows who are claimants under the British coal miners' litigation.
	On the day of my 14th birthday I went down the pit, where it was my privilege to work alongside some of the finest, hardest-working men this country has ever seen. Tragically, as a result of labouring underground in terrible conditions, many of the miners had their lungs destroyed and suffered vibration white finger.
	Following upon the High Court rulings in favour of the miners, it is to the credit of Her Majesty's Government that they provided uncapped funds to facilitate the swift delivery of compensation. In that process, the claimants were generally represented by solicitors who, in turn, were regulated by the Law Society. My task this evening is to assess the performance of the solicitors and the Law Society. The conduct of a number of solicitors handling miners' claims has, in my view, been disgraceful. Between 1999 and 2005, many solicitors acquired vast fortunes; double-charging lawyers had a charmed life, since the Law Society appeared to be in a coma. The Law Society appeared to wake up in 2004, but that was because of intense parliamentary pressure.
	We are concerned about the conduct of solicitors over seven years. A 1999 Law Society report said that the ruling was a charter for double-charging solicitors. I have consulted widely on these issues. In recent weeks, I have met Ed Balls, Member of Parliament and Economic Secretary to the Treasury; I have spoken to Zahida Manzoor, the Legal Services Ombudsman; and I have met the Law Society, which informed me that it was keen to bring to justice the solicitors who have been guilty of deducting fees from miners' compensation. I have also been assistedby Written Answers provided by Her Majesty's Government in response to several dozen Questions that I tabled. After this exhaustive investigation, it is my belief that we cannot depend upon either the solicitors concerned or the Law Society to put matters right.
	In a special report on the miners' cases published on 5 April 2006, the Legal Services Ombudsman castigated the Law Society for its failure to investigate the miners' complaints properly. The ombudsman described the miners and widows as being very vulnerable, mainly elderly, with some having severe health problems. It was also evident to the ombudsman that the Law Society was operating the same arbitrary conciliation process without any proper investigation of individual cases.
	The ombudsman ruled that the Law Society's failure had left these people badly let down. That was a damning indictment. However, the Law Society had the arrogance to respond with an attack on the ombudsman; indeed, it wrote to me on 19 June to say that it did not accept the report.
	So there you have it. According to the Law Society, the Legal Services Ombudsman got it all wrong. On that basis, it would appear that I have also got it all wrong. It must follow, therefore, that tens of thousands of miners and their widows have got it all wrong. However, nothing could be further from the truth. The Law Society and the solicitors have failed the miners and their families, a very vulnerable group, and are trying to shirk their responsibilities for this appalling state of affairs.
	Under the schemes, the solicitors get an average fee of £2,100 per case. However, more than 166,000 claimants received less in compensation than the costs paid to the solicitors. The outstanding claims will not be concluded until 2009, by which time the solicitors will have been paid a staggering £1,851 million. However, many of them betrayed their clients by double charging and acting as debt collectors for claims farmers and certain unions intent on exploiting this vulnerable group.
	While the solicitors have their snouts in the golden trough, it is left to us to secure justice for the miners and widows. These good people are desperate for our help. Some of the men are close to drawing their last breath and even then, can do so only with the help of an oxygen cylinder. It cannot be left to those poor souls to take on the lawyers and their regulators. For my part, I will use my remaining time on this earth to try and ensure that every last penny is paid back, with interest and compensation on top. I also demand a full regulatory investigation to ensure that every offending solicitor is hauled up before the solicitors' disciplinary tribunal.
	It will be noted that I have not named the solicitors at fault. However, I give notice that if this matter is not resolved forthwith, then when it comes back before this Chamber, if it ever does, I will name and shame every last one of them.
	Every single case must now be properly investigated. If the Law Society does not discharge its regulatory duties, then let Her Majesty's Government bring in an internal investigation team to sort out this unholy mess. Regrettably, time is no longer on the side of the miners and widows. We know that more than 12,000 of them have already died, without receiving any compensation.
	Since it has taken the Law Society seven years to start tackling the offending solicitors, there is a real risk that thousands more elderly miners and widows will die being denied justice. I urge noble Lords to join me in expressing unreserved condemnation of the offending solicitors and their regulators, the Law Society, thereby assuring the miners and widows that they have the support of this Chamber.
	Let me recount my own experiences. The lawyers agreed a figure with Her Majesty's Government or the department, whichever it was, to cover legal fees.I take the view that if they were not satisfied withthe fees, they should have negotiated with the Government to increase them. I think the figure was too much in any case; nevertheless, they should have had the opportunity. They should not have been deducting money from the miners' compensation, some of it a measly £500 or less. That cannot be right.
	The lawyers may argue that they are within their rights; they have the agreement of the men, the women, and all sorts of people. But that pales into insignificance beside the fact that if it is legally right—which they will argue—more importantly, it is morally wrong. I will never rest until these miners and their wives get justice.
	Twenty-four years ago in another place, I did not spend my time presenting Bills and sitting up all night to get a slot for them with the intention of lining the solicitors' pockets unfairly. I did it for the protection of those men who I worked alongside. I saw them lose their faculties. They could not breathe and could no longer work. I saw that at first hand. I was at the side of those men on the coalface when I was aged 17 and a half and I saw it all happen. I am asking tonight for this noble Chamber to give justice to these miners and for us to give them our support.

Lord Sawyer: My Lords, I congratulate my noble friend Lord Lofthouse on raising a debate on this important issue. My noble friend has an outstanding and lifelong record and reputation for fightingfor miners and their families. Indeed, much ofthe legislation on compensation is down to his considerable efforts. It is clear that the main issue of this debate is one on which my noble friend and I agree.
	Like my noble friend, I have a trade union background. I spent all my working life fighting for workers' rights. Since standing down from my main roles in the labour movement, I have become the non-executive chair of the supervisory board for Thompsons Solicitors and I declare that interest. Thompsons is the UK's largest trade union law firm. The first clause in its partnership deed states that it exists to help the trade union movement not to maximise income for partners but for trade union members. Most unions use Thompsons and to some extent my own union, Unison, uses it solely as its legal provider, but it acts for many unions including the Transport and General Workers' Union, GMB, Amicus and many others. For many years, Thompsons has also acted for many areas of the NUM. It is instructed at present by the Scottish, South Wales and Durham areas of the NUM.
	For me, this debate is essentially about the exploitation of hard-working men—working people who have been injured through no fault of their own and have not been properly compensated. Both my noble friend and I have been sickened by the stories of personal wealth built on the back of poor service by claims companies and mediocre law firms. The problem is essentially that, on the introduction of the coal health scheme, more than 700 law firms, many of which had no experience of trade union work, let alone miners' work, became involved in what can only be described as a feeding frenzy to make money from the scheme. Many, but not all of those law firms, have been named in another place. There has been heavy criticism of UDM/Vendside both in another place and in newspapers and it is clear that there has been bad abuse of the scheme, the extent of which we will only know in time.
	Far too many law firms have been allowed to get away with cherry-picking safe cases, being paid by the DTI and at the same time making deductions from compensation. The Law Society, as my noble friend said, has been making efforts to deal with that. Sadly, it seems from what we have heard tonight and what we have read in another place that its performance has been poor. It has attracted widespread criticism for the way that it has been conducting its investigations and I hope that the Minister will be able to apply pressure to remedy that fault.
	Much has been said about the level of fees covered by law firms. My noble friend mentioned it in his speech and gave more detail in his earlier article in the Times. I suspect that neither of us would argue that lawyers should not be paid what the DTI and the courts have deemed appropriate, and there is a fixed scale of charges in that respect. The problem has come with law firms wanting to make extra money to feather their nests and in some cases buy their Bentleys and private yachts. Not only are they being paid the sum set by the DTI, they are making deductions from miners' damages. That is where the real problem and scandal lie in this debate.
	It is worth recording that the fees paid to law firms are on a case-by-case basis, so that the higher the case-loading by a firm, the higher the potential fees. The scheme was thought financially to be more attractive overall than the prospect of each case being litigated one by one through the courts. That is why the scheme was introduced by the DTI. Having agreed the scheme and the fees, the DTI positively encouraged miners and their families through adverts and newsletters to go to their well established trade unions for the advice and the quality of legal service that was offered. It is a pity that more miners did not do that in areas where sensible and legitimate law firms operate and have long-standing relationships with the trade unions.
	Also prominent in the debate has been the issue of deductions by trade unions from compensation for members—a separate but related matter. I am sure that we are in total agreement that law firms making deductions for private profit when they have been paid by the DTI is unacceptable, but are deductions by unions in any way acceptable? In some cases perhaps they are; it depends on the circumstances. Deductions for trade unions are not new. Most unions have made them over time. Indeed, in the past, before the introduction of collective conditional fee agreements and before insurance cover was available for personal injury cases, they were very common. Since then, where unions have been able to get insurance cover for a case, they have done so. Deductions have become unnecessary if insurance can be obtained to cover the risk of losing. Deductions can still be necessary, however, if there is no insurance and if unions want to band together to take test cases to prove possibilities for a wider membership.
	If there is a dispute about deductions by the union in any mining community, it should be resolved within that community rather than be made into a political football, as it has been by some. The communities have been injured enough and if a resolution is available without harming the good work of legitimate and committed trade unions and law firms that is the appropriate approach. The energy Minister in another place recognised that when he said in a debate on coal surface workers on7 February 2006:
	"With such huge amounts of money being paid through the scheme to solicitors and the unions having had extra money, surely it is possible for those bodies—for moral and political reasons, if nothing else—to support individual cases so that the individual claimants are not put at financial risk. I do not believe that the cost should be borne by the general taxpayer. The solicitors and, perhaps, the unions—after all, what is the purpose of a trade union?—have a moral duty to do so".—[Official Report, Commons, 7/02/06; col. 224WH.]
	That Minister is right to say that trade unions have a unique role, but they are able to make a contribution and lead the fight only if they have the necessary funds. In the case of miners' funds, that has not always been the case. The Durham area of the NUM is to use funds to fight miners' knee cases and possible surface workers cases for which there is not yet funding.
	In reading the debates in another place on this issue and looking at some recent comments, it is possible to think that this is all about individual consumers in cases against big employers or insurers without trade union backing. That would be a big mistake. Let us condemn law firms and claims companies who exploit workers' cases by all means, as we are doing tonight, but let us not in the process damage trade unions and their trusted lawyers who are, at the end of the day, the only ones with the commitment, capability or expertise to fight the major cases and pursue a health and safety agenda with the kind of resources and vigour required on behalf of ordinary working people.

Baroness Taylor of Bolton: My Lords, I will speak briefly and make three main points. The first is to support my noble friend Lord Lofthouse. I recall his campaigns on these issues over many years and on many occasions in another place. Indeed, if I have any interest to declare, it is that I was his minder in the by-election that saw him elected into another place. I remember at that time that our daily campaigning activity was to visit different pits at different times for different shifts, because that was the core of the industrial activity in that part of West Yorkshire.
	I know that many people regret the demise of the pits, and my noble friend spoke this evening with affection and admiration for his former colleagues in the coalmining industry. I have mixed emotions about the decline of the pits because, having been down one, even a modern one, and seen the claustrophobic, dirty, dangerous conditions in which people work, I am not sure that I would want anybody to work in those conditions for my benefit. I am not just talking about the obvious danger of accidents, but about the long-term consequences of the many health risks, from lung disease to vibration white finger, with all the consequences for miners and their families.
	The need for compensation for these debilitating illnesses has occupied my noble friend for many years. I recall all his efforts—all the Private Members' ballots—and his sheer determination, and it is appropriate that I should pay tribute to his work and his persistence on this issue until he achieves recognition of the plight of his former mining colleagues. He has gone down on record as being of very significant importance in that campaign.
	I pay tribute, as the noble Lord did, to the Government for the provision of uncapped funds to help to compensate miners and their families—and I say "help to compensate" because clearly there can be no recompense in full for such debilitating and life-curtailing illnesses. We can be genuinely proud of the attitude of a whole range of Ministers who have listened and acted and given proper recognition to this problem and have been prepared to make changes to improve the scheme with such issues as fast-tracking.
	My second point is that, while I congratulatemy honourable friend and the Government on a significant achievement, I share my noble friend's concern and I can understand his anger at what he has described this evening. The achievement of providing proper compensation has been spoilt by the actions of those who have seen the scheme as a means of making an income for themselves. In fact, as he has made clear, some people have made vast sums of money out of the misery of others.
	My noble friend has outlined the amount paid to solicitors. We would all agree that everyone needs to be paid for the work that they have done, but I remind the House that these fees are more for legal administration rather than litigation and in the scale of solicitors' fees generally they are not small amounts. The problem that my noble friend focused on in particular—that of solicitors claiming extrafees from miners' compensation when they have already received the agreed fee of £2,100 fromthe Government—needs urgent and continuous attention.
	It has been mentioned this evening, and I know that it is true, that some solicitors would argue that their clients signed an agreement to allow this to happen; but I know from my previous constituency experience how vulnerable and often unquestioning many ex-miners and their families could be in what was bound to be a difficult and often emotionally charged situation of having to apply for compensation. Many of those who have applied for compensation and then agreed to deductions of this kind may have agreed to this when they were totally unaware of the full circumstances in respect of payments to solicitors from government sources. Talking as I have in the past few days to my former colleagues in another place, I am struck by how many of them have individual constituency cases that seem to confirm this and how many Members in another place are still extremely exercised by this problem and finding it a frequently mentioned constituency matter in surgeries and advice centres. There is no doubt that there is a problem here.
	I agree with my noble friend that more needs to be done, in particular by the Law Society, which seems to be moving extremely slowly on this urgent issue. There is a need for a more proactive approach to help those miners and their families who have had money unduly deducted from their compensation. The Law Society has eventually acknowledged that there is a problem, but we have to ask whether the mechanisms for redress are sufficient and comprehensive. From what I see, I do not think that they are. We should be asking what should be done now and how the Law Society can improve its attitude and speedily deal with these problems before it is too late.
	I want to mention an idea suggested by a colleague in another place. My right honourable friend Kevin Barron, the Member for Rother Valley, has suggested to Ministers one course of action that could be taken in respect of those companies with which the Law Society has found that there could be a problem. He suggested that all the claimants who used such companies should be written to and informed that they may—and it would have to be "may"—have had part of their compensation stopped in error. Such a letter could also explain the procedures open to them to seek redress. I am told that the DTI has a database that could facilitate this, as records there would match claimants to companies. Clearly this would not solve the problem entirely, but it would be a significant next step forward in ensuring that miners and their families got the full compensation to which they are entitled. I emphasise the need for urgency, given the age of most of the claimants, be they ex-miners or widows. As my noble friend said, 12,000 have already died.
	Miners waited for years for any compensation scheme of this kind, and my noble friend and others worked hard to achieve a good scheme for compensation, but it is not enough if that scheme is being abused. I sincerely hope that all those involved, in particular the Law Society, will take swift action to ensure that any past abuses are remedied and that miners and the families get the money that they need, that they are entitled to and that they deserve.

Lord Davies of Coity: My Lords, I hope I may have two minutes to speak in the gap in the speakers' list—I think that I am eligible for it. I did not intend to speak in this debate but, in view of what my noble friend Lord Sawyer said, I want to point out that a lot of trade unions have an arrangement with their members to take a proportion of any compensation for which they have successfully prosecuted. My own union did not ever do that and does not do it to this day—but some unions did, on the basis that when they lost the case, they absorbed the whole of the costs. However, they are cases that are prosecuted in the courts, not knowing the outcome. In this case, it was not a question of unions being placed in that position; the miners were awarded this money by the Government, so there was no justification for trade unions taking any proportion of it—and solicitors who did it on their behalf must have been wrong.

Lord Razzall: My Lords, I join other noble Lords in thanking the noble Lord, Lord Lofthouse, for introducing this important debate. Despite the fact that our crowd has departed, this is exactly the sort of issue that this House ought to be debating, and which finds this House at its best. Even a cursory study of the newspapers in recent months would give anyone who looks at this issue the view that something funny has been going on, and that indeed there seems to be the beginning, if not the middle and end, of a scandal in the enormous compensation that various firms of solicitors have been making at the expense of miners and their families, as the noble Lord, Lord Lofthouse, has indicated.
	I have a number of questions for the Minister. What concerns me is that there seems to be a complete mismatch between the assumptions that we are all making—I have not yet heard what the noble Baroness, Lady Miller of Hendon, will say, but I doubt that she will disagree with anything that has been said tonight—and the position that the Law Society has taken. Those of us who have received the Law Society's brief know that its position is that it has,
	"acted promptly to deal with complaints about...deductions; informed solicitors dealing with these cases of the correct approach, and is pursuing robust regulatory action against any solicitors who may have been guilty of misconduct".
	Having heard the remarks of noble Lords opposite, and having read the newspapers and looked into this myself, I have some difficulty accepting that the Law Society's interpretation of the facts is correct, but the matter could be pursued if the Minister could indicate which of the following contentions from the Law Society he agrees with.
	On the background, I understand that two particular problems have arisen. First, a number of solicitors entered into agreements with clients by which the firm of solicitors was due a success fee if the claim succeeded. As the noble Baroness mentioned, in many cases the idea of a success fee was ludicrous as a lot of the work was simply form-filling and administration. The idea that there should be a success fee—which you might have on a no-win, no-fee basis if there was litigation—was ridiculous. As there was not any risk of lack of success, it was an additional charge.
	The Law Society's case is that after MPs expressed concern about success fees, the society informed its members that the additional charges could be justified only if the charge was reasonable. It also set out a number of other conditions. The Law Society contends that £3.6 million in success fees has been returned to individual claimants or their families following its intervention. I do not know whether that deals satisfactorily with the "success fee" issue, but I would be interested to know whether the Government believe that the Law Society has dealt with it.
	A number of noble Lords have touched on the second issue, which is third party deductions. There has been an issue here for the trade union movement. Some unions have made third party deductions, but there have also been other organisations that are not trade unions and yet may have masqueraded as such. We can name names: Miners' Welfare, Union and General, the Miners Community Advice Centre, the Legal Rights Board, the Legal Advice Bureau and, notoriously, UDM/Vendside—which the UDM is blamed for, but I do not think is anything to do with it. The firm is a claims farmer that claims it is owned by the UDM, but I suspect it is not. The noble Lord, Lord Sawyer, is nodding, presumably on the basis that I am correct.

Lord Sawyer: It is owned by the UDM.

Lord Razzall: My Lords, the noble Lord says that it is owned by the UDM. The Law Society contends that third party deductions are not paid by a solicitor, but the regulatory issue is what advice a solicitor or firm of solicitors should have given to their client on third party deductions, and whether they were in breach of their obligations as solicitors in not giving proper advice to those clients on third party deductions.
	That brings us to the fundamental point raised by a noble Lord opposite on the opinion of the Legal Services Ombudsman. The latter has taken a very strong stance on the advice that solicitors gave on third party deductions. As noble Lords opposite have indicated, the Law Society fundamentally disagrees with the opinion of the Legal Services Ombudsman. It says in substance that each case has to be decided individually on its merits and that a blanket condemnation by the Legal Services Ombudsman is inadequate.
	I should very much like to hear whether the Minister considers valid the suspicions that noble Lords on both sides of the House have about the conduct of individual firms of solicitors, and about the Law Society as the regulator being inadequate in the areas that I have set out. Or does he accept that the Law Society's representations are correct? The Law Society is basically saying that there has been a handful of bad boys, but that they have been dealt with and all is well in the counties of Yorkshire, Nottinghamshire and wherever else these unfortunate incidents have occurred.

Baroness Miller of Hendon: My Lords, I thank the noble Lord, Lord Lofthouse of Pontefract, for having initiated this important debate. I congratulate him on the extraordinarily moving way in which he did so. Like the noble Lord, Lord Razzall, I consider that it is a tragedy that so many Peers left the Chamber and did not hear what was said, because it is important that people should.
	This debate is not about the compensation that has, or in many cases has not, been paid to miners; it is about expanding on the information previously extracted from the Government by the noble Lord on the way in which some of the claims have been handled by solicitors and others who were supposedly acting in the best interests of the victims.
	Advertisements have appeared on television, often several in a single hour, to try to attract people to come forward. Claims farmers have proliferated as a result of this Government's virtual abolition of legal aid, which made many miners think that it was necessary to approach such people. It has resulted in a procession of no-hope claims, which were awful, but the claims that we are discussing do not fall into that category, even though in 2003 some solicitors were reported in the press as advertising for potential claimants. The Government have in effect admitted liability for paying the compensation, so all that was totally unnecessary.
	The courts gave a ruling on how the claims were to be dealt with and undertook to supervise this by requiring a regular reporting procedure to be followed. On the orders of the court, detailed claims handling agreements were entered into between the DTI, claimants' solicitors, medical assessors and the DTI's own claims handlers. It is undoubtedly true that the cases are not all open and shut. However, unlike in normal litigation, where legal costs take into account the value of the claim, the solicitors were to be paid a fee which disregarded the amount of compensation recovered.
	Under the claims handling agreement sanctioned by the court, in the case of a successful claim the solicitors or other claims handling organisations would not need to charge any costs or fees to the claimant. That is because, as I have said, the legal fees were to be met by the DTI. Indeed, they were to be met by the DTI in full. Despite this, there are many cases reported of claimants being charged a so-called registration fee, which was non-refundable, simply to get the solicitors to take on the case.
	Even worse than that is the fact reported in the press of substantial sums being deducted by solicitors from the compensation awarded. The Times reported on 6 May that the average amount of costs by the DTI was, and indeed is—the noble Baroness, Lady Taylor, mentioned this—£2,125 and that one firm alone had received £41 million in costs from the public purse. If one firm alone has received that staggering sum, how much has been paid in legal fees to the 515 firms which have acted in these cases?
	I was going to ask the noble Lord whether there was a ceiling fixed for the compensation, but the noble Baroness, Lady Taylor, said clearly that there was no cap. However, was there a separate ceiling on costs and medical experts' fees? In each case are the costs assessed on its merits, taking into account the complexity of the case, bearing in mind that the amount of compensation awarded is not a factor?
	Prima facie, it appears that serious overcharging has been taking place. That is admitted in the briefing by the Law Society that I will shortly refer to, which I believe all noble Lords have received. The Under-Secretary of State at the Department for Constitutional Affairs, in a Written Answer, said that the chairmen of the Law Society's regulation board and consumer complaints board had jointly written to the senior partners of the 515 law firms, urging them to refund any improper charges that may have been levied. The noble Baroness, Lady Ashton, said that the legal profession was independent and self regulating and that therefore the conduct of solicitors was the responsibility of the Law Society. I shall come back to that point in a moment. Since many of us have received the brief, there is no point in my commenting on it in detail again, except to welcome the promise of,
	"robust regulatory action against any solicitors who have been guilty of misconduct".
	While no one would suggest that overhasty proceedings would be appropriate in cases where a person's profession could be taken away from them, I remind the Law Society, which undoubtedly will read this debate, that justice delayed is justice denied, and that includes justice for the victims. The noble Lord, Lord Lofthouse, explained that some claimants had died and that widows were waiting for money. That situation cannot be allowed to go on.
	I said that I would return to the fact that the noble Baroness, Lady Ashton, said that this was a matter for the Law Society. It is also a matter for the Government, and they have a major responsibility. It is no good them just saying, "This is a matter for the Law Society". It is not just that it is public money that we are talking about. It is not just that the miners have always had a close association with the Labour Party. The Government, in the form of the DTI, area contracting party to the two case-handling agreements sanctioned by the court. The other party are the solicitors for the claimants. Those agreements specifically provided that the DTI would pay the costs of the claims and that the claimants were not to be charged. So, in addition to the very proper question raised by the noble Lord, Lord Lofthouse, about the Government's assessment of the Law Society's role in this matter, I have some questions of my own.
	Rather than washing their hands of the matter, as the Written Answer implied, by saying that this was a matter for the Law Society, what steps are the Government taking to enforce the contractual provisions about not charging the claimants and to recover any such sums that have been paid for the benefit of the injured parties? How will the Government give back to the miners what is, after all, their own money?
	The Opposition have welcomed the draft Legal Services Bill, including the way in which legitimate concerns about complaints will be dealt with. However, if your Lordships listen very carefully, you will hear the sound of stable doors being slammed shut on the miners' claims; that has already happened. Apart from what the Law Society is going to do if any cases of abuse or malpractice are proved, the essential question is what the Government are going to do to enforce their legal rights on behalf of the injured parties whom the Government were trying to compensate.

Lord McKenzie of Luton: My Lords, I startby thanking my noble friend Lord Lofthouse of Pontefract for securing this debate and for continuing to keep this important issue in the public eye. Like other contributors today, I pay tribute to his tireless efforts on behalf of miners and their families, without which the British Coal compensation scheme might not have come to fruition.
	Solicitors represent claimants in processing their claims under the compensation scheme. Many claimants have had entirely appropriate advice and have received their full compensation under the schemes, but some claimants have not, and that is to be condemned. A co-ordinating group of solicitors negotiated the handling agreement for claims and now works with the DTI on those issues that remain unresolved or are preventing settlement of claims.
	There are two schemes covering respiratory and vibration-related diseases, both of which are now closed. Over 580,000 claims have been fully registered under the respiratory disease scheme, with some 316,000 claims being received in the last six months of the scheme. Some 170,000 claims were registered under the vibration scheme. In total, over 500,000 individual compensation payments worth over£3 billion have been made so far to former miners, their widows and families. These form the largest personal injury schemes ever in the UK—possibly in the world.
	No one anticipated that anything like as many as 750,000 claims would be submitted under the schemes, and in particular that there would be so many relatively low-value claims. The existing schemes are now well established. Changes to thelung disease scheme have been introduced in the past 18 months to speed up the processing, accelerating the delivery of compensation.
	Last year, the Energy Minister, Malcolm Wicks, commissioned an external review of the integrity of the administration of the schemes. The review report identified two main areas of concern in relation to solicitors' fees: the levels of solicitors' costs compared with the level of compensation received and the issue of so called "success fees" claimed by solicitors.
	The external review pointed out that the legal cost structures were largely negotiated, along with the agreements themselves, at a time when the anticipated volumes of cases under the schemes were considerably lower and their complexity greater than has proved to be the case. The DTI believes that it would be wrong not to recognise that higher than anticipated volumes of cases undoubtedly bring opportunities for batch processing and reduced costs per case.
	The review also noted that not every claim would always require the assistance of qualified legal professionals and that the cost to public funds,
	"does not now necessarily reflect the more routine nature of the work".
	That point was stressed by my noble friend Lady Taylor and the noble Lord, Lord Razzall. The review recommended, therefore, that the DTI consider whether more can be done in this area, with the aim of ensuring that legal costs more accurately reflect the nature of the work actually undertaken.
	At the time of the report, the department was already actively pursuing the issue of solicitors' costs. In particular, for lung disease fast-track claims, average damages are £2,038 and average solicitor costs are £1,815. In our view, the new fast-track approach implemented in 2005 for the lung disease scheme required significantly less input by solicitors and should incur considerably reduced costs. We have argued that case with the solicitors' representatives and, indeed, before the High Court. We then took the issue to the Court of Appeal and the department won the appeal. The Court of Appeal asked Sir Michael Turner, the judge then overseeing the respiratory disease scheme, to review his methodology for assessing an appropriate level of costs for these claims. The judge has subsequently made some amendments. However, the department has sought and been granted permission to make a further appeal against the methodology used. Significant sums in legal costs are at stake—tens of millions of pounds—and I hope that the noble Baroness, Lady Miller, will recognise that this is one action that the Government are taking to address some of the issues involved.
	There are also other areas where the DTI has yet to reach agreement with the claimants' solicitors on costs, and it is pursuing these equally vigorously to ensure that they reflect work done while also providing a reasonable level of return. The department is also challenging the claimants' solicitors' assertion that they need conditional fee arrangements in place to indemnify themselves against the cost of a claim being unsuccessful. Although the High Court has ruled that the success fees are now standard practice, we have been given permission to appeal.
	I would now like to turn to the issue of so called "double-charging", which was referred to by my noble friends Lord Lofthouse and Lord Sawyer and by other noble Lords. In this context, the external review report also discussed concerns that in some cases solicitors had taken money from claimants' compensation to cover costs even though the legal costs are met by the Government, and that in some cases union fees have been deducted from compensation.
	It would be wholly unacceptable for deductions to be made from any compensation payment without the claimant's agreement, although the review noted that as far as they were aware, there were no examples of that happening. But the review suggested that some claimants appear to have been invited to agree to make such contributions without it being clear to them that such contributions were a matter for their choice and that other solicitors would not seek to make them. The report specifically recommended that, subject to the outcome of any legal action in this area, the legal profession should take up this matter.
	These are essentially issues about conduct within the legal profession and the department in that regard has no direct role. That said, the department has made considerable efforts to resolve this issue satisfactorily over the past three years, which included the then Minister Nigel Griffiths writing to more than 700 firms of solicitors that were handling claims seeking assurances that they were not taking a cut from claimants' compensation and to repay it if they had. He also pressed the Law Society to urge firms involved to be proactive in reviewing their files to repay moneys where deductions had been made.
	The Government continue to make clear to the Law Society the importance of taking these issues forward rigorously and we now have an ongoing and constructive dialogue with it. The Law Society has no direct role in the compensation schemes, but it does have a responsibility to regulate and handle complaints about the conduct of solicitors. In 2004, the society's compliance board issued a statement to the effect that, unless full information was given to the client at the start of the matter and the additional charge was itself reasonable, the making of an additional charge to the client was likely to give rise to a finding of inadequate professional advice. Evidence of taking unfair advantage of a client by overcharging could also lead to a finding of misconduct.
	In response, the Law Society wrote to all firms that handled claims for compensation under the DTI scheme, advising them of the society's policy and reminding them to review all cases they had handled and to repay any money that was inappropriately withheld from miners who had won compensation. It is estimated that £3.6 million was refunded as a result of this and of Nigel Griffiths' initiative in 2003 to encourage firms to make refunds. In February 2006, the chairs of the consumer complaints and regulation boards of the Law Society wrote again to all solicitors involved in the schemes, reiterating this policy.
	The Law Society established a consumer complaints service in 2004 to improve handling of complaints about solicitors. Of 1,112 complaints received as at 24 May 2006, 56 per cent have been resolved by conciliation, with over £208,000 being paid to complainants through conciliation and adjudication. In addition, 48 forensic investigations into solicitors' firms have been authorised. The Solicitors Disciplinary Tribunal has been asked to consider complaints against more than 35 solicitors from 10 different firms. Another firm faces an application to the tribunal to enforce findings of inadequate professional services. Solicitors from eight other firms have received disciplinary sanctions from the adjudication panel. The tribunal's first ruling was to uphold the Law Society's decision that solicitors pay compensation to two former clients as they failed to explain funding arrangements to them.
	My noble friend will also be aware that the Legal Services Ombudsman—and this was referred to by a number of noble Lords—published a special report on the handling of miners' cases in April 2006. In it, he raised a number of concerns and made recommendations on the way forward. The Law Society has now issued a public response to that report, set out its concerns about aspects of the ombudsman's report and provided an update of its own activities. A number of noble Lords probed that issue. It seems to me that the Law Society is not saying that everything the ombudsman has said is wrong, and there is a commitment to take forward some of the issues raised in the report. The noble Lord, Lord Razzall, asked whether the Government are satisfied that the Law Society has acted as speedily and fully as it could. We would have liked it to act more speedily but think that the focus is now in the right area.
	Before I conclude, perhaps I may respond to the suggestion made by my noble friend Lady Taylor. The department will consider suggestions about writing to claimants on an individual basis. We note that the Law Society has advertised in some areas in the press to encourage interested parties to bring forward complaints. The Law Society's response to the ombudsman's report recognises that claims are still coming in at the rate of 15 a week. So this is not a closed but an ongoing matter, and it is right that it should be.
	In closing, I reiterate that the Government are committed to ensuring that claimants receive the full compensation to which they are entitled. Solicitors should be paid fairly in line with their costs for the advice that they provide to claimants, but no more. Although it has taken longer than we would have liked to reach this point, the Law Society now has the structure in place to handle effectively the complaints received.

Lord Lofthouse of Pontefract: My Lords, I think it would be appropriate to put on the record that, considering that the fast-track system does not maintain as much work for the lawyers as it did previously, and considering that some lawyer firms have already received £95 million from the Government, there should now be an investigation into the charges.

Lord McKenzie of Luton: My Lords, as I said earlier, we do not think that fees relating to the fast-track approach should be dealt with under the original tariff, and that matter is the subject of negotiation. We must continue to press the Law Society to take these things forward rigorously.
	I also welcome the actions that the Law Society has now taken to address the concerns raised most recently by the Legal Services Ombudsman and others. The department will seek to continue to reduce the costs of administration of the scheme, including legal costs, while also seeking to ensure that we achieve our objective of paying compensation to mineworkers and their families. My noble friend Lord Lofthouse is entitled to expect no less of the Government, and I am sure that he has the support of the whole House on this matter.

Police and Justice Bill

House again in Committee.

Baroness Scotland of Asthal: moved Amendment No. 191B:
	Before Clause 47, insert the following new clause-
	"ATTENDANCE BY ACCUSED AT CERTAIN PRELIMINARY OR SENTENCING HEARINGS
	For section 57 of the Crime and Disorder Act 1998 (c. 37) (use of live television links at preliminary hearings) there is substituted- "PART 3A LIVE LINKS FOR ACCUSED'S ATTENDANCE AT CERTAIN PRELIMINARYAND SENTENCING HEARINGS
	57A INTRODUCTORY
	(1) This Part-
	(a) applies to preliminary hearings and sentencing hearings in the course of proceedings for an offence; and (b) enables the court to direct the use of a live link for securing the accused's attendance at a hearing to which this Part applies, where he is held in custody at the time of the hearing.
	(2) The accused is to be treated as present in court when, by virtue of a live link direction under this Part, he attends a hearing through a live link from the place at which he is being held.
	(3) In this Part-
	"custody" includes- (a) police custody at a police station; (b) local authority accommodation to which a person is remanded or committed by virtue of section 23 of the Children and Young Persons Act 1969 (c. 54); "live link" means an arrangement by which a person (when not in the place where the hearing is being held) is able to see and hear, and to be seen and heard by, the court during a hearing (and for this purpose any impairment of eyesight or hearing is to be disregarded); "live link direction" means a direction relating to a hearing that requires the accused (if he is being held in custody during the hearing) to attend the hearing through a live link from the place at which he is being held; "preliminary hearing" means a hearing in the proceedings held before the start of the trial (within the meaning of subsection (11A) or (11B) of section 22 of the 1985 Act) including, in the case of proceedings in the Crown Court, a preparatory hearing held under- (a) section 7 of the Criminal Justice Act 1987 (cases of serious or complex fraud); or (b) section 29 of the Criminal Procedure and Investigations Act 1996 (other serious, complex or lengthy cases); "sentencing hearing" means any hearing following conviction which is held for the purpose of- (a) proceedings relating to the giving or rescinding of a direction under section 57C; (b) proceedings (in a magistrates' court) relating to committal to the Crown Court for sentencing; or (c) sentencing the offender or determining how the court should deal with him in respect of the offence.
	57B USE OF LIVE LINK AT PRELIMINARY HEARINGS
	(1) This section applies to any preliminary hearing which is to take place in the course of the proceedings.
	(2) If it appears to the court before which the preliminary hearing is to take place that the accused is likely to be held in custody during that hearing, the court may give a live link direction under this section in relation to his attendance at the hearing.
	(3) If a hearing takes place in relation to the giving or rescinding of such a direction, the court may require or permit a person attending the hearing to do so through a live link.
	(4) The court shall not give or rescind such a direction (whether at a hearing or otherwise) unless the parties to the proceedings have been given the opportunity to make representations.
	(5) Subsection (6) applies where-
	(a) a live link direction under this section is in force, (b) the accused is attending a preliminary hearing through a live link by virtue of the direction, (c) the court convicts him of the offence in the course of that hearing (whether by virtue of a guilty plea or an indication of an intention to plead guilty), and (d) the court proposes to continue the hearing as a sentencing hearing in relation to the offence.
	(6) The accused may continue to attend through the live link by virtue of the direction if-
	(a) the hearing is continued as a sentencing hearing in relation to the offence; (b) the accused consents to his continuing to attend through the live link; and (c) the court is satisfied that it is not contrary to the interests of justice for him to do so.
	(7) But the accused may not give oral evidence through the live link during a continued hearing under subsection (6) unless-
	(a) he consents to give evidence in that way; and (b) the court is satisfied that it is not contrary to the interests of justice for him to give it in that way.
	(8) If in a case where it has power to do so a magistrates' court decides not to give a live link direction under this section, it shall-
	(a) state in open court its reasons for not doing so; and (b) cause those reasons to be entered in the register of its proceedings.
	57C USE OF LIVE LINK IN SENTENCING HEARINGS
	(1) This section applies where the accused is convicted of the offence.
	(2) If it appears to the court by or before which the accused is convicted that it is likely that he will be held in custody during any sentencing hearing for the offence, the court may give a live link direction under this section in relation to that hearing.
	(3) The direction-
	(a) may be given by the court of its own motion or on an application by a party; and (b) may be given in relation to all subsequent sentencing hearings before the court or to such hearing or hearings as may be specified or described in the direction.
	(4) The court may not give the direction unless-
	(a) the offender has given his consent to the direction; and (b) the court is satisfied that it is not contrary to the interests of justice to give the direction.
	(5) The court may rescind the direction at any time before or during a hearing to which it relates if it appears to the court to be in the interests of justice to do so (but this does not affect the court's power to give a further live link direction in relation to the offender).
	The court may exercise this power of its own motion or on an application by a party.
	(6) The offender may not give oral evidence while attending a hearing through a live link by virtue of this section unless-
	(a) he consents to give evidence in that way; and (b) the court is satisfied that it is not contrary to the interests of justice for him to give it in that way.
	(7) The court must-
	(a) state in open court its reasons for refusing an application for, or for the rescission of, a live link direction under this section; and (b) if it is a magistrates' court, cause those reasons to be entered in the register of its proceedings.""

Baroness Scotland of Asthal: I shall speak to all the amendments standing in my name in this group. With the leave of the Committee, I intend to outline the nature of each of them relatively fully and to skim over the amendments tabled by others in the hope that that will help noble Lords to understand where the amendments fit and why their amendments may not be necessary.
	The amendments in my name would extend the circumstances in which live links could be used in court in criminal cases. I apologise to the Committee for bringing forward these measures by way of amendment at this late stage. The justification for doing so is that they are needed to allow a pilot scheme to proceed, which would offer the potential for significant efficiency savings.
	Amendment No. 191B would extend an existing provision that allows courts to order that a defendant in prison custody should attend hearings before the start of trial over a live link so that it would also apply, provided the prisoner consented, to sentencing hearings. That would permit the more effective use of existing live-link facilities and avoid the unnecessary transport of prisoners between prisons and courts. For example, under the current arrangements, where a defendant pleads guilty at a preliminary hearing, the hearing has to be adjourned and the prisoner brought to court before the court can proceed to sentence, even if the prisoner would like it to be dealt with otherwise. The amendment would allow the court to proceed straight to sentence, if appropriate.
	The measure includes three safeguards to ensure fairness to the defendant. The first is that sentencing can take place over a live link only where the defendant consents. Secondly, where a defendant has to give evidence over a link, he or she must specifically consent to giving evidence in that way. Finally, the court will allow a live link to be used only where it is not contrary to the interests of justice to do so.
	This amendment, by extending the definition of custody to cover police custody, will allow a pilot scheme to proceed in London. It involves using a live link between a police custody suite and a magistrates' court operating rather later than normal court hours. Where a suspect has been charged and would otherwise have to be held in custody overnight, he might instead appear in court over a link, avoiding the need for a night in the cells. Where there is a guilty plea and the defendant is content to be sentenced on the spot, the case might even be disposed of there and then if the court decides that that is appropriate.
	The benefits are potentially substantial and we are anxious to assess them. But a pilot cannot happen until the existing law has been amended so as to clarify that the first hearing in a case may take place over a live link and that the link can operate from police custody as well as from a prison. In addition, the full benefits of the pilot will not be realised without provision for a convicted defendant to be sentenced over a live link, provided, of course, that he consents to be so sentenced. The amendment would make those changes.
	I entirely understand Amendments Nos. 191C to 191J tabled by the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman. They have proposed amendments to ensure that the live link facilities enable a defendant to consult his lawyer privately. That is perfectly acceptable and reasonable.
	I can reassure the Committee on this point. We certainly agree that it is essential for defendants who are appearing by a link to have access to legal advice, just as they would if they were physically present in court. The existing provision in Section 57 of the Crime and Disorder Act 1998 for preliminary hearings to be held over a link operates on the basis that there are facilities available for the defendant in prison to consult his lawyer in the courtroom, although there is no such requirement on the face of the Act. That system has worked effectively for years. Facilities whereby the defendant could take confidential advice from his lawyer before a hearing, and speak to his lawyer by telephone during the hearing, could also be made available for the sentencing and appeal hearings for which links could be used if these amendments were passed.
	The amendments of the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman, would also require that, before a defendant could consent to be sentenced or to give evidence during a sentencing hearing over a live link, the court would have to have received written evidence that the defendant had taken legal advice about using a live link. I can reassure the Committee that the defendant will have the opportunity to take legal advice on whether to appear over a live link, but I do not believe that a defendant who refuses legal advice should be precluded from consenting to appear over a live link for sentencing. I also believe that it would cause unnecessary delay for a court to have to wait for written evidence that a defendant had received legal advice, when that legal advice might often be taken moments before the hearing, or even during the hearing, particularly if it all happens over a live link.
	On Amendment No. 194F, I am also proposing an amendment to Schedule 15 to apply the new provision for live links to review of sentence hearings under Section 74 of the Serious Organised Crime and Police Act 2005. Such hearings allow the defendant's co-operation with the authorities to be considered and their sentence varied, in limited circumstances. The defendant's consent would be required, as it is for a sentencing hearing.
	On Amendment No. 191K, I am also seeking to introduce a new Chapter 1A into the Youth Justice and Criminal Evidence Act 1999 that would allow vulnerable defendants to give evidence over a live link if appropriate conditions are met. In SC v UK, the European Court of Human Rights found that an 11 year-old with a cognitive age of only six to eight years had not had a fair trial because his very low level of understanding about the proceedings and their consequences meant that he could not participate effectively in his trial. The solution that the Government have been discussing with the senior judiciary is to make available to vulnerable defendants the sort of special measures that apply to vulnerable witnesses, including using an appropriate adult to work with the defendant and defence counsel to ensure that the defendant can effectively participate throughout the trial.
	One such measure—allowing vulnerable defendants to give evidence by way of a live link—requires legislation, as the existing statutory provision for witnesses explicitly excludes defendants. Giving evidence via a live link from a comfortable room in the courthouse, away from the formality of the courtroom itself, may be less distressing and difficult than giving evidence in the courtroom. We believe that we need to make this provision in order to bring us into compliance with our ECHR obligations.
	My amendment enables the court to grant a defence application to give evidence over a live link if it is satisfied that three conditions are met: first, that it is in the interests of justice to do so; secondly, that the use of a live link would enable the defendant to participate more effectively in the proceedings; and, finally, that there is an identifiable reason why the defendant has a problem with giving oral evidence. The test for that last reason is different for juvenile and adult defendants to reflect the fact that it may not be that uncommon for juvenile defendants to require assistance in giving oral evidence. However, there should be a strong presumption that adult defendants are able to give oral evidence in court.
	Amendments Nos. 191L and 191M, in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, would reduce the age at which the reduced threshold applies so that only those under 17 would benefit. For the purposes of the youth justice system, 17 year-olds are classified as children. I see no reason to depart from that policy and not to offer them the same safeguards as other children have for live video links. As the noble Baroness, Lady Linklater, has a clear devotion to children's issues, I believe that she will concur with me on that.
	In addition, the amendments of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, would remove the requirement about a juvenile defendant's identifiable reason—a low level of either intellectual ability or social skills—for having difficulty giving evidence orally in court. My amendment aims to ensure that vulnerable defendants receive a fair trial. Therefore, in due course, we will oppose their amendments, because they would allow all juvenile defendants to seek to avoid giving evidence in person in court. I gently suggest that defendants should be able to avoid giving evidence in court only if there is a risk that giving evidence in the courtroom itself would prevent the defendant from receiving a fair trial. There is of course an opportunity for the court to decide which childrenare particularly vulnerable—that may be more appropriate the more tender the age of the child, and it may change as the age group differs.
	On Amendments Nos. 194ZA, 194G and 194H, I propose minor consequential amendments to the Youth Justice and Criminal Evidence Act 1999 under Schedule 15 and minor amendments to Clause 52, to ensure that reporting restrictions regarding the new clause allowing vulnerable defendants to give evidence over a live link does not apply in Scotland, which would have required a legislative consent motion.
	On Amendment No. 191P, I propose to amend Section 22 of the Criminal Appeal Act 1968 to allow appellants to appear at the Court of Appeal (Criminal Division) over a live link from custody. The senior judiciary is very supportive of this amendment, which will help to prevent delays in court hearings regarding the transport of prisoners to the Court of Appeal. Noble Lords will be aware that in the majority of cases the appellant never gives evidence but can appear. Such an appearance can be incredibly disruptive for the appellant and, indeed, unnecessary for the court.
	Amendments Nos. 191Q and 191R, again in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, would make it clear in the Bill that facilities would be available for appellants to consult their lawyer when present over a live link. The amendments would require that an appellant consented before a live link was used and that a defendant took legal advice before consenting to appear over a live link. They would also make it clear that the Court of Appeal must be satisfied that the use of a live link was not contrary to the interests of justice. Again, I can assure the Committee that facilities will be made available for appellants to consult their legal representatives. However, I hope that the Committee will agree that the Court of Appeal can be trusted to deal appropriately and fairly with appellants without further safeguards in the Bill.
	Finally, Amendment No. 197 amends the Title to make it clear that the Bill involves changes to the circumstances in which live links can be used in court.
	I have tried to explain the amendments comprehensively because I know that the Committee has not had an opportunity to consider them before. I understand that fuller consideration may be necessary and I hope that noble Lords will not press their amendments at this stage, although I also understand that that will not preclude them from coming back at Report or later to raise further issues of clarification. Indeed, those may conveniently go into the basket of issues that we may discuss between now and when the matter returns to the House. I commend the amendments and I beg to move.

Baroness Anelay of St Johns: moved, as an amendment to Amendment No. 191B, Amendment No. 191C:
	Leave out lines 25 to 29 and insert-
	""live link" means an arrangement by which- (a) a person, when not in the place where the hearing is being held, is able to see and hear, and to be seen and heard by, the court during a hearing (and for this purpose any impairment of eyesight or hearing is to be disregarded); (b) the person is able privately to seek and obtain advice from and privately to give instructions to his legal representatives in the court; and (c) the person's legal representatives in the court are able privately to seek and obtain instructions from and privately to give advice to the person;"

Baroness Anelay of St Johns: I shall speak also to my remaining amendments in the group, Amendments Nos. 191C to 191J. Given the late hour, I do not propose on this occasion to speak to the further government amendments or the Liberal Democrat amendments in the group. At first sight, the government amendments appear to be a welcome development, but it is right that the noble Lord, Lord Dholakia, should have tabled his amendments to require the Government to justify their proposals. I entirely agree with the Minister that we will need to consider all these matters further in a constructive way before we reach Report in the autumn.
	It is always difficult when amendments are tabled at this stage, when a Bill has already passed through another place, to consider new matters of policy, because, when matters return amended from here to another place, another place can debate them only under the procedure for the Commons consideration of Lords amendments—a very truncated procedure subject to the guillotine. I am grateful to the Minister for expediting these matters and bringing them forward in Committee before the Summer Recess. I know that that has put some extra pressure on the Bill team, whose members are to be congratulated on having expedited these matters so that we do not have to wait until Report to deal with them.
	I am also grateful to the Minister for saying that she fully realises that, although we want to consider the constructive measures proposed by the Government, we will agree tonight on the new clauses being inserted in the Bill on the basis that that is not a hostage to fortune and we may need to return to them after a period of reflection.
	There is indeed much with which we can agree, but some concerns have been raised about aspects of the new clauses. We are certainly in favour of reducing delay in the criminal justice system. Delay does not serve the interests of the public, the victims or the defendant; all are disserved by it. But if it is to be justice, as the old chestnut has it, it must be seen to be fair. We all agree on that. So I welcome the signal from the Government that they are looking for practical solutions to delays in the criminal justice system. Using modern technology to its best extent is an innovative and practical way forward and could be a real bonus to everyone.
	The question is whether the Government's proposals are justifiable and appropriate. The noble Baroness has spoken at reasonable length to her amendments and I propose to do the same, in the hope that that will inform those whom we will need to consult during the Summer Recess and considerably shorten any proceedings that we need to undertake at Report. I also say that to assist the Deputy Chairman of Committees, so that he knows that I will not finish in the next minute or two.
	When I first heard of the new clauses last week, it was on the basis that these proposals were to prevent the churn factor whereby those who are in prison awaiting a bail hearing or sentencing find themselves bussed out at some stage during the day—sometimes after some delay—and taken around the country while various other prisoners are dropped off at other courts, never knowing whether at the end of the day, when they have been sentenced, they will return to the same prison or have to go somewhere else a considerable distance away. Some may have sympathy for the prisoners, and some may not, but one can certainly have sympathy for the system itself, which is not functioning most effectively or efficiently. It is certainly right that the Government should look at practical measures to deal with the problem. Of course, I could have the immediate teasing reaction this evening and say that churn is even worse when the Government have their prisons stuffed full and do not have the proper measures in place to ensure that prisoners are well looked after, and that all they do is let them out on early release to be a threat to the public—but I shall not go down that avenue tonight.
	I recognise that, whatever the prison population under any Government, it is more practical and proportionate to provide for live links to carry out proceedings that can be more properly dealt with in that way than by upsetting the whole system and involving a lot of people in unnecessary trouble. It is simply a question—our amendments are all about this—of which proceedings should be subject to this expedited procedure.
	Late last week, when I received the draft new clauses and the covering letter from the Minister, it became clear that the proposals are rather more wide-ranging than we had originally anticipated. A particular concern has been raised by the prospect of a pilot project, to which the Minister has referred, which appeared—I stress "appeared"—to signal a return of the Government's plans for night courts. I would be grateful if the Minister, who is shaking her head, could further clarify that. I thank her for her letter, which she and her officials prepared overnight and which arrived in my e-mail just as I came into the Chamber this afternoon. In that helpful letter, for which I am grateful, they refer to the night courts and to the pilot. They also repeat much of the original letter, so I will not do the same. They say that, although the magistrates' courts participating in the pilot would need to operate rather later than normal court hours, they would not be open all night.
	That gives rise to two questions. First, can the Minister explain how the new clauses would prevent the introduction of night courts without further legislative provision? Secondly, what consultation has there been with the Magistrates' Association on the proposals for a pilot in London, and what was its response? The problem is that, although the Minister appears in her covering letter to give some assurance that the provisions are not about night courts, thenew clauses seem to give carte blanche to such a development.
	This will not surprise the Minister, as I asked this question last night, but, as the proposal is heralded as a pilot, why not have a time limit on the power and then proceed more widely with further enabling powers once the pilot has been shown to work properly? What is the disadvantage in that? I am grateful to the Minister for meeting me yesterday evening to have a preliminary discussion on these matters. I also thank Justice, Liberty, the Prison Reform Trust, the Magistrates' Association and the Law Society for their very swift response to the first sight that we gave them of the new clauses at the end of last week. My amendments have been tabled simply to raise some of the issues that they raised, and no more at this stage.
	I am keenly aware of the delays that are sometimes caused by waiting for the defendants in custody to arrive in courts, and we will support any measures that can properly reduce such delays. Although the holding of preliminary and/or sentencing hearings by video link may be sensible and expedient in some cases, it may disadvantage the defendant and the court in others. We believe that a defendant should not be sentenced, give oral evidence or attend an appeal via a video link without his consent, and that he should be legally advised before consent is given. My amendments, as the Minister has recognised, have been tabled simply to raise that concern.
	One of the disadvantages of live links is thatthey can make it difficult for the defendant to communicate confidentially with his, or her, lawyer. We therefore propose amending the definition of "live link" to ensure that facilities are available for such communication to take place. My amendment would ensure that in addition to being able to communicate with the court during the hearing, the person could seek and obtain legal advice from his legal representatives so that he and they are not disadvantaged in giving and receiving advice and instructions by reason of the live link. We need to know how that fits in with the protections under PACE and other protection measures to be sure that there is a proper way of people getting advice, and that it is confidential advice.
	Of course, the ability to give instructions and receive legal advice and confidence is an essential part of the guarantee of a fair trial. It is of particular importance that live links do not compromise the ability to do so. I recognise that the Minister has said that she is not seeking to do that, it just how we get there. It is of even more importance if, as envisaged in the proposed new clauses, first appearances in the magistrates' courts and sentencing can take place via the live link. Surely, that could mean that in some cases the only meeting between the defendant and his legal representative could be via the link. I look back to the second paragraph of the noble Baroness's letter that came overnight in which she says:
	"Facilities whereby the defendant could take confidential advice from his lawyer before a hearing and speak to his lawyer by telephone during the hearing would be available for the sentencing and appeal hearings for which links could be used if these amendments were passed".
	That part of the letter, which has not yet been seen by outside organisations, needs to be considered by them, because I think that the noble Baroness has taken us one stage further.
	Other amendments in my group provide that the court should not proceed via live link without the defendant's informed consent, following legal advice. The presence of the defendant in the court at pre-trial and sentencing hearings is an important safeguard for several human rights under the ECHR. As we have often said, the scars of self harm or abuse may be much more evident to the eye in person than on the video link, but it would have to be taken into account in any move forward in the way in which the Government propose.
	The proposal that a person could plead guilty and be sentenced by the magistrates from police custody perhaps creates a risk that the person may be, by inducements or oppression, persuaded to admit the offence and plead guilty at the police station. I know that the noble Baroness will return to issues about PACE and protections in the system. It is a concern that it may influence the police and the CPS in making charging decisions to charge a person and put them before the video link court rather than using alternative disposals such as cautions and restorative solutions. We have certainly supported the Government in seeking those alternatives in the past.
	The Magistrates' Association says that it has a serious objection to the idea of custody including police stations and local authority accommodation. It finds this entirely unacceptable and says that the reason given by the noble Baroness in her first letter—because it has not seen the second letter—is alarming. It says that the concept of someone being taken to a police station, charged and then being offered an immediate court hearing by video link, rather than spending a night in custody, is an obvious example of pressure and improper incentive. It feels that this would not be efficiency but improper haste where the safeguards might not be adequate. I would be grateful if the noble Baroness could respond to the Magistrates' Association's concerns, which she may want to do more fully in a letter to me and perhaps the association. I feel sure that she will seek to talk to its members during the Summer Recess.
	In conclusion, our amendments would ensure that a defendant should be sentenced or give evidence via live link only with his consent, and that the potential disadvantages of so doing should be explained to the defendant by his legal representatives before he gives that consent. In particular, I would be most grateful if the Minister could clarify whether there are any occasions on which live links will be used where a person is not required to give his or her express consent. I beg to move.

Baroness Linklater of Butterstone: I rise to speak to Amendments Nos. 191L, 191M and 191P which address the issue that all children under the age of 17 are eligible for the live link direction. Having listened to the Minister, I am aware that there is a lot of common ground here and we welcome further discussions. However, I shall go through the argument briefly so as to lay the ground.
	The purpose of the amendments is to introduce consistency, clarity and common sense into the clause. Under the Youth Justice and Criminal Evidence Act 1999, witnesses under the age of 18 are eligible for special measures on account of their age alone. It also recognises that their youth may make it necessary to make special measure directions so that the quality of their evidence can be maximised. However, the new clause does not include this provision for all child defendants. Instead it inserts an extra criterion that a child's level of intellectual ability or social functioning must compromise their ability to participate effectively in the proceedings. We would argue that the criteria for ordering special measures for all witnesses, including the defendant, should be the same. Therefore we would change the age from 18 years old to 17 because that is the age under which children are eligible for special measures as witnesses on the ground of age under Section 16 of the Youth Justice and Criminal Evidence Act.
	We also propose that the additional requirement regarding intellectual ability or social functioning be removed for children under 17 because it is simply not fair and may also force the court to make difficult determinations in all youth cases on the child defendant's level of intellectual ability or social functioning. This in turn could lead to expert evidence in some cases, which would be costly, lengthy and enormously complicating. Indeed, if questions arise on whether a child's level of intellectual ability or social functioning is compromised, it is questionable whether the child should be involved in a trial at all. A video link may indeed help a child to be less intimidated by the process of giving evidence, but it will not ease the difficulties for a child in participating effectively in a trial or understandingthe proceedings and their gravity, such as making decisions and giving instructions to his or her legal representatives. There will be some children for whom this is and will remain impossible.
	As I have said, we would welcome further discussions with the Minister on this, so we regard these amendments as probing in nature.

Baroness Harris of Richmond: I shall speak to Amendments Nos. 191Q and 191R tabled in my name and that of my noble friend Lord Dholakia. Both amendments were commended to us by Liberty and Justice. They would ensure that in addition to being able to communicate with the Court of Appeal during the hearing, the person could seek and obtain legal advice from his legal representatives so that he and they would not be disadvantaged in giving and receiving advice and instructions by reason of the live link. We believe that it is an essential part of the guarantee of a fair hearing that a person can communicate in confidence with his legal representatives at the Court of Appeal.

Baroness Scotland of Asthal: I hope that I have been able to give some comfort to all three noble Baronesses, Lady Anelay, Lady Linklater and Lady Harris, with the rather full explanations I set out earlier. I do not propose to reiterate those, but perhaps I may deal first with some of the issues raised by the noble Baroness, Lady Anelay.
	I want to put on the record that it is absolutely not our intention to reintroduce night courts. I would also be more than happy to place a copy of the letter I wrote to the noble Baroness, Lady Anelay, and copied to the noble Lord, Lord Dholakia, in the Library of the House so that it is available for other noble Lords better to consider the details contained therein. In that letter, I make clear that we will test the concept of the use of live links in magistrates' courts through a pilot to be run at rather later than normal court hours. The most important thing is to identify the London courts which are willing to participate in the pilots and negotiate with them on the kind of framework they are going to have. It would have been quite improper for us to have started negotiations on that matter, either with them or, indeed, with the Magistrates' Association, before coming to this House and seeking permission to so do.
	I very much welcome the comments made by the noble Baroness and her appreciation that these amendments have a practical orientation as opposed to anything else. They are designed to speed up proceedings and I can reassure the Committee that the Government do not in any way wish to diminish the rights of the individual in relation to access to lawyers or the way in which PACE applies. There are clear opportunities to save time and effort in relation to defendants, victims and witnesses. Justice delayed is justice denied, and delays can be very distressing for victims and for defendants who wish to admit guilt quickly and to be dealt with. I envisage that the kinds of cases that are likely to be disposed of in this way will be at the lower end of the scale. With most other offences, risk assessments and other issues have to be dealt with, reports have to be obtained in relation to sentencing and it simply is not possible to dispose of the more complex cases without the benefit of a little more mature reflection.
	I invite the House to remember that we now have a new process in relation to charging. It is no longer the police who charge; the Crown prosecutor has to be satisfied about the nature of the charge and that the evidence produced is sufficient to charge. So, if you like, we have another safety net as regards the propriety of doing that and we believe that these provisions will be efficacious.
	I hope that I have indicated with sufficient clarity the occasions when consent is to be asked for, first in relation to sentencing and then in relation to those other matters. I hope the Committee will feel that the Court of Appeal is safe to be trusted with the Human Rights Act, the ECHR, the PACE conditions and the need to have a lawyer. I shall certainly be very happy to consider these matters further and to write more fully in response if noble Lords feel that that is appropriate.
	We do not think that there has been any improper haste in bringing these matters forward. It is not easy to see why a defendant should feel more under pressure as a result of an immediate court appearance than, for instance, the prospect of a night in thepolice cells, particularly if it is for a relatively straightforward offence. I think many defendants would like to get matters over and done with and not spend a night in the police cells. It is not something that holds a lot of attraction for many defendants. Indeed, for those of us who have had the benefitof seeing them at that stage, it is something to beavoided if at all possible, but absolutely necessary on occasion.
	As to the point of the noble Baroness, Lady Linklater, in relation to juveniles, I remind her—I know she is very familiar with this—that juvenile courts are specifically created to be less intimidating. Some children—dependent on their age, I know—welcome the fact that they are, for once, included in proceedings. Many children are often excluded and things happen behind their backs—they are not involved and they are not made to feel responsible—and this can inure to their disadvantage. We do not think that it should be applied to all children because, if it were, we would have all children giving evidence via a video link if they were under 17. I am not sure whether that is what the noble Baroness is suggesting but, just to put it on record at this stage, we would find that very difficult to accept.
	We shall have an opportunity to talk further about this and we will be able to respond more fully if the noble Baroness, Lady Harris, on reflection, having had the opportunity to read what I have said at great speed in introducing these amendments, thinks that it is necessary.
	I very much thank Members of the Committee for the very helpful and collaborative way in which they have responded. If we were into teasing, I could tease the noble Baroness, Lady Anelay, by saying that I hope she is not seeking to suggest that those who should justly be in prison should be put elsewhere, but that, too, can be left for another day.

Baroness Anelay of St Johns: I teased the noble Baroness because it is the Government, in their early release schemes, who are releasing from prison those who should be there. We can see the difficulties arising from those with life sentences who have been lost after release by the probation service. However, we will return to those matters another day.
	I am grateful to the noble Baroness for her statement that it is not the Government's intention to return to night courts. I notice that she did not say that these provisions would preclude that, but I take on trust what she said. We will consider further whether any amendment needs to be made, but I certainly accept her assurance.
	The Minister also gives proper recognition of PACE and the protections it contains. Of course we accept that, but it is a question of the interplay between the protections of PACE as operated by the police and the need of people accused of a crime to be able to get the protection of legal advice as well. She is right to point out that there has to be a provision for refusing legal advice. On occasion it is the very people who refuse it and then plead guilty who ought to have taken it in the first place. They then get tied up in knots, saying that they did it but they did not mean to. Then we get into intentionality, so there is a difficulty there.
	I accept what the Minister says about the cases likely to be at the lower end, although they are not necessarily confined there by these provisions. One would expect that to be the case. I hear what the Minister says about consent; there are still some matters where expressed consent will not be required but may be acceptable.
	So far, I have been looking from the point of view of protections for the defendant. Since it is late, perhaps I may be a little frivolous, although the police may not consider it so. I saw a report last week about another use of new technology: the police are piloting the use of a helmet with a camera on it so that you are really banged to rights if you are arrested. I had this apocalyptic vision of the Government's justice system: the police take the video, nab the person and say, "Right, my son, here you are, it's midnightand the next thing you are going to do is pleadguilty by live link". That is a potentially interesting development.

Baroness Scotland of Asthal: Perhaps I may help the noble Baroness. In our arrangements, the wonderful thing is that the defendant can simply say, "No, I don't want to plead guilty. I just want to be bailed".

Baroness Anelay of St Johns: Let us hope they have the relevant advice and the good sense to do that where it is right to do so. We are on the same side, but for some people, it is much better if the thing is disposed of properly. All of us want the proper protections to be in place so that the right result is achievable even if it is not always achieved in the justice system.
	So far, I have looked at all the procedures from the point of view of the defendant, who may or may not be guilty. But one's overall concern is still with the victim, as the noble Baroness says—the victim and the public. There is accountability to the victim and the public which sometimes only a court appearance can bring. We must get the right balance and make sure that we do not avoid public accountability through a court appearance where that is the right thing to do.
	I welcome the opportunity to look at these matters during the summer. In the mean time, I beg leave to withdraw the amendment.

Amendment No. 191C, as an amendment to Amendment No. 191B, by leave, withdrawn.
	[Amendments Nos. 191D to 191J, as amendments to Amendment No. 191B, not moved.]
	On Question, Amendment No 191B agreed to.

Baroness Scotland of Asthal: moved Amendment No. 191K:
	Before Clause 47, insert the following new clause-
	"EVIDENCE OF VULNERABLE ACCUSED
	After section 33 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (interpretation etc of Chapter 1 of Part 2) there is inserted-
	"CHAPTER 1A
	USE OF LIVE LINK FOR EVIDENCE OF CERTAIN ACCUSED PERSONS
	33A LIVE LINK DIRECTIONS
	(1) This section applies to any proceedings (whether in a magistrates' court or before the Crown Court) against a person for an offence.
	(2) The court may, on the application of the accused, give a live link direction if it is satisfied-
	(a) that the conditions in subsection (4) or, as the case may be, subsection (5) are met in relation to the accused; and (b) that it is in the interests of justice for the accused to give evidence through a live link.
	(3) A live link direction is a direction that any oral evidence to be given before the court by the accused is to be given through a live link.
	(4) Where the accused is aged under 18 when the application is made, the conditions are that-
	(a) his ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by his level of intellectual ability or social functioning; and (b) use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise).
	(5) Where the accused has attained the age of 18 at that time, the conditions are that-
	(a) he suffers from a mental disorder (within the meaningof the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function; (b) he is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court; and (c) use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise).
	(6) While a live link direction has effect the accused may not give oral evidence before the court in the proceedings otherwise than through a live link.
	(7) The court may discharge a live link direction at any time before or during any hearing to which it applies if it appears to the court to be in the interests of justice to do so (but this does not affect the power to give a further live link direction in relation to the accused).
	The court may exercise this power of its own motion or on an application by a party.
	(8) The court must state in open court its reasons for-
	(a) giving or discharging a live link direction, or (b) refusing an application for or for the discharge of a live link direction, and, if it is a magistrates' court, it must cause those reasons to be entered in the register of its proceedings.
	33B SECTION 33A: MEANING OF "LIVE LINK"
	(1) In section 33A "live link" means an arrangement by which the accused, while absent from the place where the proceedings are being held, is able-
	(a) to see and hear a person there; and (b) to be seen and heard by the persons mentioned in subsection (2); and for this purpose any impairment of eyesight or hearing is to be disregarded.
	(2) The persons are-
	(a) the judge or justices (or both) and the jury (if there is one); (b) where there are two or more accused in the proceedings, each of the other accused; (c) legal representatives acting in the proceedings; and (d) any interpreter or other person appointed by the court to assist the accused.
	33C SAVING
	Nothing in this Chapter affects-
	(a) any power of a court to make an order, give directions or give leave of any description in relation to any witness (including an accused), or (b) the operation of any rule of law relating to evidence in criminal proceedings.""
	[Amendments Nos. 191L to 191N, as amendments to Amendment No. 191K, not moved.]
	On Question, Amendment No. 191K agreed to.

Baroness Scotland of Asthal: moved Amendment No. 191P:
	Before Clause 47, insert the following new clause-
	"APPEALS UNDER PART 1 OF THE CRIMINAL APPEAL ACT 1968
	(1) In section 22 of the Criminal Appeal Act 1968 (c. 19) (right of appellant to be present at criminal appeal hearings in Court of Appeal), after subsection (3) there is inserted-
	"(4) The Court of Appeal may give a live link direction in relation to a hearing at which the appellant is expected to be in custody but is entitled to be present (by virtue of subsection (1) or leave given under subsection (2)) at any time before the beginning of that hearing.
	(5) For this purpose-
	(a) a "live link direction" is a direction that the appellant (if he is being held in custody at the time of the hearing) is to attend the hearing through a live link from the place at which he is held; and (b) "live link" means an arrangement by which the appellant is able to see and hear, and to be seen and heard by, the Court of Appeal (and for this purpose any impairment of eyesight or hearing is to be disregarded).
	(6) The Court of Appeal-
	(a) must not give a live link direction unless the parties to the appeal have had the opportunity to make representations about the giving of such a direction; and (b) may rescind a live link direction at any time before or during any hearing to which it applies (whether of its own motion or on the application of a party)."
	(2) In section 23 of that Act (giving of evidence), after subsection (4) there is inserted-
	"(5) A live link direction under section 22(4) does not apply to the giving of oral evidence by the appellant at any hearing unless that direction, or any subsequent direction of the court, provides expressly for the giving of such evidence through a live link."
	(3) In section 31(2) of that Act (powers exercisable by single judge), after paragraph (c) there is inserted-
	"(ca) to give a live link direction under section 22(4);"."
	[Amendments Nos. 191Q and 191R, as amendments to Amendment No. 191P, not moved.]
	On Question, Amendment No. 191P agreed to.
	Clause 47 [Orders and regulations]:

Baroness Henig: moved Amendment No. 192:
	Page 37, line 18, leave out subsection (4).

Baroness Henig: I shall also speakto Amendment No. 193, standing in my name. Amendment No. 193 is the key amendment, Amendment No. 192 being consequential. It is very much a probing amendment.
	We debated at length on earlier Committee days the proposals to put many of the Bill's provisions in secondary legislation and I do not wish to rehearse all those issues. However, as I said, key principles should be placed in primary legislation while only genuine matters of administrative detail should be in secondary legislation. I am not entirely convinced that we have yet achieved that balance, although I note and thank my noble friend for her offers to continue discussions with key stakeholders over the summer to try to resolve some of the more contentious issues.
	I would expect that ultimately, and in some cases rightly, many provisions will still be subject to secondary legislation. The question then arises about whether those provisions should be subject to negative or affirmative resolution procedures. My noble friend has already indicated that she is likely to accept the recommendations of the Delegated Powers and Regulatory Reform Committee. The amendment would clarify what further issues she thinks should be subject to positive resolution—which are the important matters of principle that she would accept ought to be debated by Parliament and which are merely matters of administrative detail. Given that the criminal justice system is such an important guarantor of the freedoms of the people of this country, does she agree that it is important that fundamental changes to it should be fully scrutinised and debated by Parliament? I beg to move.

Baroness Harris of Richmond: I support Amendment No. 193. The amendments would remove references to the process of negative resolution whereby orders put forward by the Secretary of State under aspects of this Bill would not necessarily be debated by Parliament, as the noble Baroness, Lady Henig, said. It makes all order-making powers proposed in the Bill subject to positive resolution, which means that orders must be debated and approved by both Houses of Parliament.
	Once again, and finally, we reiterate that we have concerns about how secondary legislation is being used within the Bill to determine or change key constitutional functions. Assuming that at least some of those key aspects will remain in the Bill at the end of the legislative process, this is an additional safeguard to limit the use of those powers and ensure that secondary legislation formulated under the Bill is open to some parliamentary scrutiny.

Baroness Anelay of St Johns: I added my name in support of Amendment No. 193. The noble Baroness, Lady Henig, has neatly returned us, at the end of day four in Committee, to the concerns underlying all the debates that we had on that first day in Committee when we looked at the number of matters that had been shifted from primary to secondary legislation. She has underscored the concerns that we retain, not only that matters should be dealt with by negative resolution, but that they should be dealt with by secondary legislation at all.
	Of course, I appreciate that Governments want flexibility, but there are some occasions on which one loses the security and effectiveness of an organisation if one removes matters from primary legislation. We have concerns about the maintenance of the tripartite relationship and the way in which it has been built up because of some of the provisions in the Bill. That is a signal to the fact that when we reach Report, we shall want to focus on some more closely defined issues. We had—or at least I had—a scattergun approach on the first day in Committee. I know that I shall spend the summer looking at the Bill far more narrowly. There may be only two or three issues that I shall wish to return to, but in some strength, on the matter of what should be in primary and secondary legislation and what is the appropriate method of scrutiny of that secondary legislation. So this is an appropriate way in which to end our debates. I know that there is a technical government amendment to follow, but otherwise the noble Baroness has achieved a neat and elliptical move.

Baroness Scotland of Asthal: I certainly agree with the noble Baroness, Lady Anelay, that this is a nice way in which to end, because it is a summation of where we have reached at the end of these four days in Committee. The short answer to my noble friend Lady Henig is that those orders are listed in Clause 47(5). We have said that we shall look again at the provisions relating to the membership or functions of police authorities with a view to tabling amendments on Report. I certainly envisage writing more of the detail into primary legislation. The Delegated Powers and Regulatory Reform Committee did a very good job in looking through the specific details and trying to differentiate between those aspects that could properly be dealt with by negative resolution and those that should properly be dealt with by affirmative resolution. I reaffirm my commitment that we shall together look at those issues between now and Report so that we can better hone any issues on which we can no longer agree.
	I hope to be able to convince noble Lords that the division that we shall eventually arrive at is fair and proper. I absolutely understand that the noble Baroness in her scrutiny will come to a slightly different balance, but I hope that we shall not, because through this trilateral partnership that has taken place on many Bills we have been able to come to a resolution that has inured to the benefit of everybody. I am very hopeful that we shall be able to do that again. With that promise, I hope that my noble friend and noble Lords opposite will be content to rest this issue here and to move swiftly on to our last remaining, short consensual amendment.

Baroness Henig: I am very grateful for what my noble friend has said and the conciliatory spirit in which the points have been made. In view of the lateness of the hour, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 193 not moved.]
	Clause 47 agreed to.
	Clauses 48 to 50 agreed to.
	Schedule 15 [Minor and consequential amendments]:

Baroness Scotland of Asthal: moved Amendment No. 193A:
	Page 150, leave out line 14 and insert-
	"( ) Section 5 of that Act (significant links with domestic jurisdiction) is amended as follows.
	( ) In subsection (2), for paragraph (b) there is substituted-
	"(b) that any computer containing any program or data to which the accused by doing that act secured or intended to secure unauthorised access, or enabled or intended to enable unauthorised access to be secured, was in the home country concerned at that time."
	( ) In"

Baroness Scotland of Asthal: This amendment will ensure that persons accredited by the police under Clause 13 are not eligible to serve as chairman or members of the Independent Police Complaints Commission. This will bring them into line with other categories of accredited person. I beg to move.

Lord Dholakia: I am rather confused. Did the Minister just talk about the members of the Police Complaints Authority under Amendment No. 193A?

Lord Haskel: It is Amendment No. 194A.

Lord Dholakia: I was talking about No. 193A.

Baroness Scotland of Asthal: I thought we were on Amendment No. 194A. I beg the Committees's pardon. Amendment No. 193A was in a group that was debated and agreed previously by the Committee, and I was going to move it formally. I went straighton to the next substantive amendment, Amendment No. 194A.

Lord Dholakia: I intended to ask another question on Amendment No. 193A. I hope the Minister will not mind. This is about Section 2 of the Computer Misuse Act. I find it very difficult to understand why a person guilty of an offence in England and Wales under subsection (5) is liable to imprisonment for a term not exceeding 12 months, but, on summary conviction in Scotland for the same offence, is liable to a term not exceeding six months. I wanted to know precisely why there was this difference.
	The second point I wanted to talk about, following the argument used by the noble Earl, Lord Northesk, was on Amendments Nos. 193A and 193B. We were talking about computer hacking. The government amendment talks about Section 5 of the Computer Misuse Act, which says:
	"that any computer containing any program or data to which the accused secured or intended to secure unauthorised access by doing that act was in the home country concerned at that time".
	That is as far as England and Wales are concerned. I suspect it also applies to the sheriffdom in Scotland. There are cases of computer hacking going on at international level. Is the Act simply restricted to what happens when a person is in this country, or does it apply internationally as well?

Baroness Scotland of Asthal: I confess that to give the noble Lord a full explanation about the latter issue would take a little time, not least because of the complexities of the matters raised by the noble Earl, Lord Northesk, who is not in his place. I ask the noble Lord if he will allow me to write to him on those matters.
	On the difference between England and Wales and Scotland, the noble Lord will be only too familiar with the fact that the two jurisdictions have slight differences. The different sentences simply reflect the sentencing provisions in each jurisdiction. That is one of the consequences of devolution. The Scots have their own sentencing structure, and the sentences relate directly to the slightly different offences inthe relevant sections. It is consistent in terms of devolution, although inconsistent in terms of sentencing levels.
	I hope the noble Lord is content. I had thought, because these amendments were debated already, that we would have the luxury of simply moving them, but it is always a pleasure to answer the noble Lord.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 193B to 194A:
	Page 150, line 39, at end insert-
	"( ) In subsection (1), for paragraph (b) there is substituted-
	"(b) any computer containing any program or data to which the accused by doing that act secured or intended to secure unauthorised access, or enabled or intended to enable unauthorised access to be secured, was in the sheriffdom at that time.""
	Page 152, line 16, at end insert-
	"( ) In subsection (2), after "such access" there is inserted "or to enable such access to be secured"."
	Page 152, line 25, at end insert-
	"Police Act 1996 (c. 16)
	In section 91 of the Police Act 1996 (offence of causing disaffection amongst members of police forces etc), after subsection (2) there is inserted-
	"(3) Liability under subsection (1) for any behaviour is in addition to any civil liability for that behaviour.""
	Page 153, line 18, at end insert-
	"Youth Justice and Criminal Evidence Act 1999 (c. 23)
	31A (1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
	(2) In the cross-heading before section 47 (restrictions on reporting directions under Chapter 1 or 2 of Part 2) and in the heading to that section, for "Chapter I or II" there is substituted "Chapter 1, 1A or 2".
	(3) In section 47, in subsection (2)(a), after "section 19", in the first place it occurs, there is inserted ", 33A"."
	Page 154, line 6, at end insert-
	"In section 9 of the Police Reform Act 2002 (the Independent Police Complaints Commission), in subsection (3)(d), after "section 41" there is inserted "or 41A"."
	On Question, amendments agreed to.

Baroness Scotland of Asthal: moved Amendment No. 194B:
	Page 157, line 24, leave out paragraph 46 and insert-
	"46 (1) Section 26 of that Act (parenting orders in respect of criminal conduct and anti-social behaviour) is amended as follows.
	(2) In the heading, at the end there is inserted ": youth offending teams".
	(3) After subsection (8) there is inserted-
	"(9) A person is eligible to be the responsible officer in relation to a parenting order under this section only if he is a member of a youth offending team.""
	On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 194C:
	Page 158, line 9, leave out from first "officers" to "registered" in line 10 and insert "in relation to parenting orders made on the application of local authorities in England or of"
	On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 194D to 194F:
	Page 158, line 18, leave out from first "officers" to "registered" in line 19 and insert "in relation to parenting orders made on the application of local authorities in Wales or of"
	Page 158, line 30, leave out from "29)," to end of line 42 and insert "in the definition of "responsible officer", for the words after "means" there is substituted "the person who is specified as such in the order,"
	Page 159, line 18, at end insert-
	"Serious Organised Crime and Police Act 2005 (c. 15)
	After section 75 of the Serious Organised Crime and Police Act 2005 (proceedings under section 74: exclusion of public), there is inserted-
	"75A Proceedings under section 74: use of live link
	Section 57C of the Crime and Disorder Act 1998 (use of live link in sentencing hearings) applies to hearings in proceedings relating to a reference under section 74(3) as it applies to sentencing hearings.""
	On Question, amendments agreed to.
	Schedule 15, as amended, agreed to.
	Schedule 16 agreed to.
	Clause 51 agreed to.
	Clause 52 [Extent]:

Baroness Scotland of Asthal: moved Amendments Nos. 194G and 194H:
	Page 40, line 34, leave out "(5)" and insert "(5A)"
	Page 40, line 45, at end insert-
	"(5A) Subsection (5) does not apply to the amendments made by paragraph 31A of Schedule 15, which do not extend to Scotland."
	On Question, amendments agreed to.
	Clause 52, as amended, agreed to.
	In the Title:
	[Amendments Nos. 195 and 196 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 197:
	Line 13, after "2003;" insert "to make further provision about the use of live links in criminal proceedings;"
	On Question, amendment agreed to.
	Title, as amended, agreed to.
	House resumed: Bill reported with amendments.

Parliamentary Costs Bill [HL]

The Bill was reported from the Joint Committee without amendment and recommitted to a Committee of the Whole House.

National Health Service Bill [HL]

The Bill was reported from the Joint Committee with amendments and recommitted to a Committee of the Whole House; it was ordered that the Bill be printed as amended.

National Health Service (Wales) Bill [HL]

The Bill was reported from the Joint Committee with amendments and recommitted to a Committee of the Whole House; it was ordered that the Bill be printed as amended.

National Health Service (Consequential Provisions) Bill [HL]

The Bill was reported from the Joint Committee with amendments and recommitted to a Committee of the Whole House; it was ordered that the Bill be printed as amended.
	House adjourned at thirteen minutes before ten o'clock.